0120152878
01-22-2016
Randolph T. Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Randolph T.
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120152878
Agency No. 1K211002515
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated August 25, 2015, dismissing his complaint of unlawful employment discrimination alleging violations 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
At the time of events giving rise to this complaint, Complainant worked as a Manager, Maintenance Operations, at the Agency's P&DC facility in Baltimore, Maryland.
On July 25, 2015, Complainant filed a formal EEO complaint alleging that the Agency subjected him to discrimination on the bases of race/national origin (Indian), color, age, and reprisal when: (1) on May 14, 2015, the selection he made for the Manager, Maintenance Operations, EAS-23, position was rescinded; and (2) on May 15, 2015, his detail to the Manager, Maintenance, EAS-25, position was terminated.
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 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.
It is undisputed that Complainant's attorney received the notice of right to file a formal complaint ("Notice") on July 9, 2015. Although the notice indicated that Complainant had to file a formal complaint within fifteen (15) calendar days of its receipt, Complainant did not file his formal complaint until July 25, 2015, which is beyond the limitation period.
On appeal, Complainant's attorney takes that position that he has complied with the 15-day filing requirement because the date of the delivery of the Notice (July 9, 2015) should not be counted as the first day of the limitation period. He is correct that the first day of the limitation period should be counted from July 10, 2015. However, counting from July 10 (as the Agency did in its dismissal decision), the 15th day was on Friday, July 24, 2015, a regular business day. The envelope containing Complainant's formal complaint was clearly postmarked on July 25, 2015, beyond the 15th day. Therefore, we find that Complainant has failed to establish that the Agency erred in determining that he filed his formal complaint beyond the 15-day limitation period.
Complainant next argues on appeal that any untimely filing should be excused and his complaint accepted and consolidated with another complaint identified as Agency No. 1K-211-0010-14. We note that in that other complaint, the Agency issued a final decision, dated August 15, 2014, addressing the merits of Complainant's claims and concluding no discrimination had been proven. Complainant appealed to this Commission. In EEOC Appeal No. 0120143038, we affirmed the Agency's decision (November 11, 2015). Complainant has a pending request for reconsideration of this decision docketed as EEOC Request No. 0520160116. In the current matter, we find that Complainant has not offered adequate justification to warrant an extension of the time limit for filing his complaint or for consolidating this matter with his other complaint that has already been investigated and adjudicated by the Agency and decided, at least initially, by this Commission.
Accordingly, the Agency's final decision dismissing Complainant's complaint 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
January 22, 2016
__________________
Date
2
0120152878
2
0120152878