Otis H.,1 Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security (U.S. Coast Guard), Agency.

Equal Employment Opportunity Commission

Nov 4, 2016

0120142030 (E.E.O.C. Nov. 4, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Otis H.,1
Complainant,

v.

Jeh Johnson,
Secretary,
Department of Homeland Security
(U.S. Coast Guard),
Agency.

Appeal No. 0120142030

Agency No. HS-USCG-00331-2014

DECISION

Upon review, the Commission finds that the Agency’s final decision dated April 4, 2014,
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 record indicates that on December 23, 2013, Complainant contacted an EEO Counselor
concerning his complaint. Unable to resolve the matter informally, Complainant’s attorney of
record received a notice of right to file a formal complaint on January 24, 2014. Therein, the
attorney was clearly notified of the 15-day time limit to file Complainant’s complaint
However, Complainant, via his attorney, did not file his formal complaint until February 11,
2014, which was beyond the limitation period. 29 C.F.R §§ 1614.106(b) and .604(d).

In his complaint, dated February 11, 2014, Complainant, a former Agency employee, alleged
discrimination based on age (over 40) when on December 11, 2013, he was terminated from
his employment at the Agency. The attorney acknowledged that the complaint was filed late
because he had technical problems with his electronic mail system during the last day to file
the complaint. Complainant provides no explanation as to why he or the attorney was unable
to mail his complaint via regular mail instead of electronic mail. Based on the foregoing, we

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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find that 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 the complaint is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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. The requests may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
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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

November 4, 2016
Date