0120142505
03-24-2016
Wes L.,1 Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Wes L.,1
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120142505
Agency No. OCFO-2011-00676
DISMISSAL OF APPEAL
By Notice of Appeal postmarked July 1, 2014, Complainant filed an appeal with this Commission from the April 30, 2014, final Agency decision (FAD) concerning his EEO 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the reasons stated below Complainant's complaint is dismissed.
The FAD was received at Complainant's address of record on May 5, 2014. A review of the FAD reveals that the Agency properly advised Complainant that he had thirty (30) calendar days after receipt of its final decision to file his appeal with the Commission. Therefore, in order to be considered timely, Complainant had to file his appeal no later than June 4, 2014. The record reveals that Complainant filed his appeal with the Agency on June 4, 2014. Complainant maintained that he faxed his appeal to the Commission at the end of May but there is no record of a fax being received by this office. We note however, that Complainant faxed his appeal brief to the Washington Field Office (WFO) and that brief was forwarded to the Office of Federal Operations but there is no record of the actual appeal being sent to the WFO. The Commission has held that where proper appeal rights have been given, an appeal is untimely filed where the appeal is mailed to the wrong office, even if it would have been timely filed if mailed directly to the Commission. Henry v. Dep't of Veterans Aff., EEOC Request No. 05901116 (Nov. 30, 1990). But see, York v. Dep't of Def., EEOC Request No. 05A00946 (Dec. 7, 2001); Hyland v. Dep't of Education, EEOC Request No. 05930037 (May 27, 1993)(Complainant sent appeal to the EEO Office and not to Commission); Rodriguez v. Dep't of the Air Force, EEOC Request No. 05940933 (June 2, 1995)(confused Complainant mailed appeal within limitations period to an EEOC District Office); Thompson v. Dep't of the Army, EEOC Request No. 05940588 (Feb. 24, 1995)(Complainant filed appeal with Agency's EEO office); Lord v. U.S. Postal Serv., EEOC App. No. 05890175 (June 9, 1989)(Agency should have promptly forwarded appeal filed with agency to the Commission). We find Complainant has not offered adequate justification for an extension of the applicable time limit for filing his appeal.
CONCLUSION
Accordingly, Complainant's July 1, 2014 appeal is hereby dismissed. See 29 C.F.R. � 1614.403(c).
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 Mdden's signature
Carlton M. Hadden, Director
Office of Federal Operations
___3/24/16_______________
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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