Jerry D. McKenzie, Appellant,v.William S. Cohen, Secretary, Department of Defense, Agency.

Equal Employment Opportunity CommissionOct 8, 1999
01990600 (E.E.O.C. Oct. 8, 1999)

01990600

10-08-1999

Jerry D. McKenzie, Appellant, v. William S. Cohen, Secretary, Department of Defense, Agency.


Jerry D. McKenzie, )

Appellant, )

)

v. ) Appeal No. 01990600

) Agency No. DFAS-DE-DENV-98-021

William S. Cohen, )

Secretary, )

Department of Defense, )

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., the Age Discrimination in Employment Act of 1967,

as amended, 29 U.S.C. �621 et seq., and the Rehabilitation Act of 1973,

as amended, 29 U.S.C. �791 et seq. The final agency decision was received

by appellant on September 28, 1998. The appeal was postmarked October

28, 1998. Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)),

and is accepted in accordance with EEOC Order No. 960, as amended.

ISSUE PRESENTED

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

complaint.

BACKGROUND

Appellant contacted an EEO counselor on October 2, 1997, regarding

allegations of discrimination. Informal efforts to resolve appellant's

concerns were unsuccessful. Accordingly, on April 29, 1998, appellant

filed a formal complaint alleging that he was the victim of unlawful

employment discrimination on the bases of race (White), color (White),

sex (male), physical disability (hearing loss), age (55), and reprisal

(prior EEO activity).

On May 18, 1998, the agency issued a final decision (FAD1) accepting

for investigation allegation (1) but dismissing appellant's remaining

complaint allegations for failure to timely initiate contact with an EEO

Counselor, and for failure to timely file a formal complaint after having

received notice of his right to do so. Subsequently on September 30,

1998 the agency issued another decision (FAD2) dismissing previously

accepted allegation (1) of appellant's complaint on the grounds that

appellant failed to timely file a formal compliant. In his statement on

appeal, appellant contends that he hand delivered a copy of his formal

complaint to the agency EEO office at 5:25 p.m. on April 17, 1998.

He maintains that he was unable to locate anyone in the EEO office so

he was forced to leave the complaint on the EEO secretary's desk on the

evening of April 17, 1998. Appellant maintains also that prior to April

17, 1998, he had been discouraged by agency officials from performing

research relative to his complaint and that agency officials monitored

his computer screen to ensure that he was not working on his complaint,

leaving him very little time to meet the filing deadline.

In response to appellant's appeal statement, the agency provided the

Commission with copies of affidavits from employees of the EEO office

indicating that the EEO office is open for business Monday through

Friday from 7:30 a.m. to 4:30 p.m. and that appellant did not deliver

his formal compliant to the EEO office prior to the close of business

on April 17, 1998.

ANALYSIS AND FINDINGS

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 receipt of the notice of right to file, required by 29

C.F.R. �1614.105(d), (e), or (f).

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

dismiss a complaint or a portion thereof, that fails to comply with the

applicable time limits contained in ��1614.105, 1614.106, and 1614.204(c),

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

The record herein indicates that on April 2, 1998, appellant received an

agency document entitled �Notice of Right to File Individual Complaint�

informing him of his right to file within fifteen (15) days of his receipt

of the Notice. Accordingly, appellant's complaint would be timely filed

on April 17, 1998. The agency maintains that although the office was

closed for business at 4:30 p.m., an EEO office employee was available

until 6:00 p.m. on the evening of April 17, 1998 providing appellant an

opportunity to timely file his complaint. Upon review of the evidence

of record, we determine that appellant has failed to present persuasive

evidence that he filed his formal complaint in a manner consistent

EEOC Regulations. EEOC Regulation 29 C.F.R. �1614.106(b) requires an

appellant to file his complaint with an appropriate agency official within

fifteen days of his receipt of the agency's Notice of Right to File.

Here, appellant indicates that he left the complaint on the desk of an

employee in the EEO office at 5:25 p.m. on the evening of April 17, 1998.

The agency has presented evidence that an employee was available until

6:00 p.m. that day, yet appellant chose, as he indicates on appeal,

to leave the complaint unattended late in the evening on April 17,

1998. We find that appellant has failed to provide the Commission with

persuasive evidence to support his contention that he had very little time

to meet the filing deadline in part because agency officials discouraged

him from filing a formal complaint and monitored his work station to

ensure that he was not working on his complaint. Without more evidence

to support appellant's contentions that his complaint was timely filed,

we must affirm the agency's decision. We find that the agency's decision

dismissing appellant's complaint as untimely was proper.

CONCLUSION

Accordingly, the agency's decision dismissing appellant's complaint as

untimely is hereby AFFIRMED for the reasons set forth herein.

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. In the alternative, you may file a

civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. 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:

October 8, 1999

____________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations