0120112193
07-22-2011
Michael J. Toland, Complainant, v. Gary Locke, Secretary, Department of Commerce, (Bureau of the Census), Agency.
Michael J. Toland,
Complainant,
v.
Gary Locke,
Secretary,
Department of Commerce,
(Bureau of the Census),
Agency.
Appeal No. 0120112193
Agency No. 11-63-00015
DECISION
Upon review, the Commission finds that the Agency’s final decision
dated February 16, 2011, dismissing Complainant’s complaint due
to untimely filing of a formal complaint is proper pursuant to 29
C.F.R. § 1614.107(a)(2). The Agency’s decision dismissing the
complaint is AFFIRMED.
BACKGROUND
The record indicates that Complainant, a Program Analyst, GS-0343-14, with
the Agency’s Privacy Office, contacted an EEO Counselor concerning his
complaint. Unable to resolve the matter informally, Complainant received
a Notice of Final Interview & Notice to File a Formal Complaint (FIN) on
January 12, 2011. Complaint File (COM), at 136. Complainant filed his
formal complaint on February 4, 2011, alleging discrimination based on
disability (back pain) and in reprisal for prior EEO activity when from
February 25, 2009, to February 2, 2011, he was subjected to harassment
on numerous occasions involving Absent Without Official Leaves, leave
restrictions, an official reprimand, and a performance rating. COM,
at 5-10.
ANALYSIS AND FINDINGS
The record indicates that on January 12, 2011, Complainant, via FIN,
was clearly informed of the 15-day time limit to file his complaint.
However, Complainant did not file his complaint until February 4, 2011,
which was beyond the limitation period. See 29 C.F.R §§1614.106(b) and
(c). On appeal, Complainant contends that he did not file his complaint
in a timely manner due to his physical conditions and the emergency
situation concerning his family member. Complainant’s Appeal Brief,
at 1-2. We find that Complainant fails to show that he was so physically
or emotionally incapacitated as to be unable to file his complaint in a
timely manner. Thus, we find that Complainant has not offered adequate
justification to warrant an extension of the time limit for filing
the complaint. We note that Complainant admits having received the
FIN a week before the emergency situation concerning his family member
arose. Furthermore, Complainant’s claim about statements made by an
EEO Counselor were not raised until appeal and were not referenced in
his justification to the Agency for late filing of the complaint. Nor
does Complainant explain why he did not request an extension from the
Agency to file the complaint.
CONCLUSION
Accordingly, the Agency’s final decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 (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 (Z0610)
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
7/22/11
__________________
Date
2
0120112193
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120112193