0120150578
03-09-2016
Kendall C.,1 Complainant, v. Eric Fanning, Acting Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kendall C.,1
Complainant,
v.
Eric Fanning,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 0120150578
Agency No. ARAPG14SEP03434
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated October 31, 2014, dismissing a formal complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as an Operations Officer at the Agency's Army Garrison Aberdeen Proving Ground (APG), Maryland.
On October 26, 2014, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected him to discrimination on the bases of race and age.
On October 31, 2014, 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 noted that during his October 9, 2014 final interview, Complainant signed and received a Notice of Right to File a Discrimination Complaint (hereinafter referred to as "Notice") dated October 9, 2014. The Notice informed Complainant that a formal complaint had to be filed within fifteen days of receipt of the Notice. The Agency stated that on October 23, 2014, Complainant went to the EEO office and requested an extension to file a formal complaint. Complainant was informed that an extension would not be granted and that his formal complaint was due the following day, October 24, 2014. However, the Agency found that on October 24, 2014, Complainant sent an email to an EEO Complaints Manager stating that he stopped by the EEO office at 5:00 p.m. and apologized for being late. Complainant did not leave his complaint under the door or attach it to his email to the EEO Complaints Manager dated October 24, 2014. The Agency found that Complainant waited until October 26, 2014, to email his formal complaint, which it found to be beyond the requisite fifteen days from the date of the receipt of the Notice.
Complainant, on appeal, acknowledges he received the Notice on October 9, 2014 but when he asked for an extension, the EEO Complaints Manager "did not extend to me the opportunity to explain my extenuating circumstances as to why I needed an extension. Because I was not granted an extension, I did return to the APG EEO office at approximately 1700 (5:00 pm) on Friday, 24 October 2014. The door was locked and I did not see a secure drop box to leave the packet, the post office was also closed so mailing the packet for a postmark on that date was out of the question, and I did not have scan capabilities to email it. I sent an email later that evening to [EEO Complaints Manager] (see attached email), explaining that I had tried to get the packet to her. I was able to get the packet scanned into an email to send it [EEO Complaints Manager] on Sunday, 26 October 2014...I believe since I emailed [EEO Complaints Manager] the day I came (the date it was due) to the office and provided her the knowledge of my intent to file Formal and given my family emergency beyond my control, due consideration in the timeliness determination should have been afford to me."
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, which, in turn, requires the filing of a formal complaint within fifteen (15) days of receiving notice of the right to do so.
Based on a thorough review of the record and consideration of the arguments on appeal, the Commission concludes that the Agency dismissal, due to the untimely filing of the formal complaint, was proper, based on the following documentation relating to transmission of the Notice. The record reflects that on October 9, 2014, Complainant received the Notice, and on October 23, 2014 Complainant's request for an extension was denied because his complaint was due the next day, October 24, 2014. In his October 24, 2014 email to the EEO Complaints Manager, Complainant stated "I came by your office o/a 24 1700 OCTOBER 2014, to turn in the paper work to file my Formal EEO Complaint, sorry I was late, please advise, thanks [emphasis in its original]." The record further reflects that on October 26, 2014, Complainant emailed his formal complaint to the EEO Complaints Manager.
As the record establishes that the Notice was received on October 9, 2014, Complainant's formal complaint, filed on October 16, 2014, was more than fifteen days after the limitation period set forth in the regulations. Complainant has not presented adequate justification for extending the limitation period beyond fifteen days.
The Agency's final decision to dismiss 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
March 9, 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.
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