0120161476
05-13-2016
Everett C.,1 Complainant, v. Charles F. Bolden, Jr., Administrator, National Aeronautics and Space Administration (Kennedy Space Center), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Everett C.,1
Complainant,
v.
Charles F. Bolden, Jr.,
Administrator,
National Aeronautics and Space Administration
(Kennedy Space Center),
Agency.
Appeal No. 0120161476
Agency No. NCN-15-KSC-00074
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated January 19, 2016, dismissing a formal complaint of unlawful employment discrimination alleging a violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
BACKGROUND
During the period at issue, Complainant worked as an Information Technology Specialist at the Agency's Information Technology and Communications Services Directorate, Kennedy Space Center, Florida.
On November 27, 2015, Complainant filed a formal EEO complaint alleging that the Agency subjected him to discrimination on the basis of race (African American) when his supervisor evaluated his performance for the 2014-2015 rating year as "Unacceptable."
In its January 19, 2016 final decision, the Agency issued a final decision dismissing Complainant's formal complaint, pursuant to 29 C.F.R. � 1614.107(a)(2), on the grounds that it was untimely filed. The Agency found that a Notice of Right to File a Discrimination Complaint (hereinafter referred to as "Notice") was hand-delivered to Complainant on November 6, 2015. The Notice notified Complainant that a formal complaint had to be filed within fifteen days of receipt of the Notice. However, the Agency found that Complainant waited until November 27, 2015, to file his formal complaint, which it found to be beyond the requisite fifteen days from the date of the receipt of the Notice.
The instant appeal followed.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. � 1614.106(b) which, in turn, requires the filing of a formal complaint within fifteen (15) days of receiving the notice of the right to do so.
Here, it is undisputed that Complainant received the notice of right to file his formal complaint on November 6, 2015. It is also clear from the record that the notice contained language clearly indicating that a formal complaint had to be filed within fifteen days of receipt of the notice. Complainant mailed in his formal complaint, and the postmark on the filing is November 27, 2015, six days beyond the fifteen day limitation period.2
On appeal, Complainant provides a number of reasons for the delay and requests that any untimely filing be excused. He states:
During this time there was so many things going on and so many things going through my mind; one of those things being that my 72 year old mother had undergone and was recovering from a major back surgery which removed sections of her spine. I was her primary caretaker as her only child living in the state.
The Commission has consistently held, in cases involving physical or mental health difficulties, that an extension is warranted only where an individual is so incapacitated by his or her condition that he or she is unable to meet the regulatory time limits. See Davis v. United States Postal Service, EEOC Request No. 05980475 (August 6, 1998); Crear v. United States Postal Service, EEOC Request No. 05920700 (October 29, 1992). We find in the instant case that, although we are sympathetic to the difficulties endured by complainant during the time period which he was required to timely file his formal complaint, Complainant failed to demonstrate that he was so incapacitated by the various events that we should waive the regulatory filing limitation. Moreover, Complainant also indicated that he delayed filing because he was reassigned to another supervisor on October 4, 2015, and needed to consider whether he should follow through with his complaint.
Accordingly, the Agency's final decision dismissing the formal complaint on the grounds of untimely filing is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
May 13, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 Despite Complainant's assertion that the formal complaint was filed on November 20, 2015, the postmark is clear and the signed formal complaint form is dated "11/24/2015."
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