Harvey B. Corbett, Appellant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionSep 9, 1999
01985259 (E.E.O.C. Sep. 9, 1999)

01985259

09-09-1999

Harvey B. Corbett, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Harvey B. Corbett v. Department of the Army

01985259

September 9, 1999

Harvey B. Corbett, )

Appellant, )

)

v. ) Appeal No. 01985259

) Agency No. BEHT-98-02I0240

Louis Caldera, )

Secretary, )

Department of the Army, )

Agency. )

______________________________)

DECISION

Appellant filed an appeal with this Commission from a final decision of

the agency concerning his complaint of unlawful employment discrimination

in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. �2000e et seq., and the Age Discrimination in Employment Act

(ADEA) of 1967, as amended, 29 U.S.C. �621 et seq. The final agency

decision was dated June 4, 1995. The appeal was postmarked June 19, 1995.

Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)), and is

accepted in accordance with EEOC Order No. 960.001, as amended.

The issue on appeal is whether the agency properly dismissed appellant's

complaint on the grounds that he failed to timely file a written complaint

upon receiving notice of his right to file.

EEOC Regulation 29 C.F.R. �1614.106(b) requires the filing of a written

complaint with an appropriate agency official within fifteen (15)

calendar days after the date of receipt of the notice of the right to file

a complaint. Complaints are deemed filed when received by an appropriate

agency official, unless postmarked earlier. 29 C.F.R. �1614.604(b).

EEOC Regulation 29 C.F.R. �1614.107(b) states that the agency shall

dismiss a complaint or a portion of a complaint that fails to comply

with the applicable time limits contained in . . . �1614.106 . . . unless

the agency extends the time limits in accordance with �1614.604(c).

The agency's final decision dismissed appellant's complaint on the grounds

that he exceeded the fifteen day time limitation period. After a careful

review of the record, the Commission finds that appellant's complaint

was filed in an untimely manner. The record indicates that appellant

received notice of his right to file a formal complaint on April 2, 1998.

Appellant's formal complaint, however, was not filed until May 12, 1998,

which was forty (40) days after he received the notice.<1>

The Commission must next determine whether the appellant has submitted an

adequate justification, pursuant to 29 C.F.R. �1614.604(c), for extending

or waiving the time limitation period.

Appellant, both on appeal and at the time he filed his formal

complaint, maintained that the reason he filed his complaint in an

untimely manner was due to a "miscommunication" between him and the EEO

counselor. According to appellant, upon receiving the notice, he had

concerns about the way his allegations were described, and he felt that

certain issues were missing. Appellant stated that the EEO counselor told

him that the missing allegations would be addressed in her counselor's

report and that he should speak to the EEO Officer about any concerns

he had with the notice. Appellant maintained that he "was under the

impression, for some reason, that [he] had the right to review" the EEO

counselor's report before he filed his formal complaint.<2> Appellant

attributed his error to several factors that were going on in his life,

i.e., his anguish at the slow progress his case, the sickness of a family

member, the fact that he was still working in a hostile environment,

and his preparation for active reserve military duty.

We find that appellant did not provide an adequate justification for

extending or waiving the time limitation period. A review of the notice

provided to appellant reveals that he was explicitly informed that

his complaint had to be filed within 15-calendar days. The pertinent

section, we note, was both underlined and highlighted. In light of the

clear language contained in the notice, we will not apply the equitable

tolling provisions of 29 C.F.R. �1614.604(c). Accordingly, we find that

the decision of the agency was proper and it is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and be submitted to the Director, Office of

Federal Operations, Equal Employment Opportunity Commission, P.O. Box

19848, Washington, D.C. 20036. In the absence of a legible postmark,

the request to reconsider shall be deemed filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 (Z1092)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court appoint

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security. See Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. ��791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court. Filing a request for an attorney does not extend your time

in which to file a civil action. Both the request and the civil action

must be filed within the time limits as stated in the paragraph above

("Right to File A Civil Action").

FOR THE COMMISSION:

September 9, 1999

DATE Carlton Hadden, Acting Director

1Appellant's complaint was delivered by hand to the agency.

2Appellant also noted his unsuccessful attempts to contact the EEO

Officer. According to appellant, "[p]erhaps, some timely interface with

[the EEO Officer] could have [made] a difference in this matter."