0120090910
03-24-2009
Kenneth R. Smith, Complainant, v. Michael D. Griffin, Administrator, National Aeronautics and Space Administration, Agency.
Kenneth R. Smith,
Complainant,
v.
Michael D. Griffin,
Administrator,
National Aeronautics and Space Administration,
Agency.
Appeal No. 0120090910
Agency No. NCN08MSFCA035MC
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 24, 2008, dismissing his 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.
In a formal EEO complaint, complainant, a former agency employee,
alleged that he was subjected to discrimination on the bases of race
(African-American), sex (male), age (61), and reprisal for prior protected
EEO activity under Title VII of the Civil Rights Act of 1964 when:
(1) on September 20, 2007, he was issued an unsatisfactory performance
evaluation on his 60-day performance improvement plan (PIP) and was told
he failed to meet the requirements of the PIP; (2) on September 20, 2007,
he was issued a notice of adverse action and escorted off the premises
and denied access to his computer; and (3) on October 23, 2007, he was
terminated from his position. In a final decision dated July 24, 2008,
the agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(2),
due to the untimely filing of the formal complaint.
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 the notice of the right to do so.
The record discloses that, following EEO counseling on these matters,
the agency twice sent complainant the notice of right to file a formal
complaint, which informed him that he had to file a formal complaint
within fifteen days of receipt of the notice. On December 12, 2007,
the agency sent the notice by regular mail and by certified mail to
complainant's address of record. The certified letter was not picked
up and was returned to the agency after three delivery attempts by the
postal service. However, the notice sent by regular mail was not returned
as undeliverable. The EEO counselor contacted complainant by telephone and
informed him that the notice would be resent. On January 10, 2008, the
agency resent the notice by regular mail and certified mail. The notice
was accompanied by a letter from the EEO counselor indicating that the
agency would presume that the notice was received by complainant within
five calendar days from its postmark. Again, the certified letter was
returned to the agency after three delivery attempts and the regular
mail was not. Complainant filed his formal complaint on May 9, 2008.
On appeal, complainant has not explained the delay.
Actual receipt of a document is generally necessary to commence the
running of a regulatory time limit. However, a regulatory time limit
may run where due diligence is used to deliver appropriate rights to
a complainant but the effort is unsuccessful. See Woehr v. United
States Postal Service, EEOC Request No. 05960657 (July 3, 1997). Given
the agency's efforts in the instant matter to deliver the notice by
certified mail, and the fact that the agency contacted complainant by
telephone and the two notices sent alternatively by regular mail were not
returned, the Commission finds that the agency exercised due diligence in
sending the notice to complainant. Moreover, the letter accompanying the
notice indicated a five-day receipt presumption. Although the notice
stated that complainant had to file a formal complaint within fifteen
(15) calendar days of its receipt, complainant did not file his formal
complaint until May 9, 2008, which is well beyond the limitation period.
On appeal, complainant has not offered adequate justification to warrant
an extension of the time limit for filing the complaint.
Accordingly, the agency's final decision dismissing complainant's
complaint is affirmed.1
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 9-18 (November 9, 1999). 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 24, 2009
__________________
Date
1 The agency's decision gave complainant appeal rights to the Merit
Systems Protection Board because it involved a termination. The MSPB
noted that complainant had the right to appeal the dismissal to the
Commission, and as such found that complainant's appeal to the MSPB was
not ripe for adjudication. The matter was dismissed without prejudice
pending the instant appeal.
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0120090910
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090910