0120141558
09-23-2016
Wilbert W.,1 Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Wilbert W.,1
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Citizenship and Immigration Services),
Agency.
Appeal No. 0120141558
Agency No. HSCIS014662013
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated February 24, 2014, 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., 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 that follow, the Agency's final decision (FAD) is AFFIRMED.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was an applicant for employment at the Agency's Headquarters Office of Chief Counsel in Washington, DC. Complainant initiated EEO Counselor contact on May 23, 2013, but informal efforts to resolve his complaint were unsuccessful. On October 28, 2013, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Native American), national origin (Native American), sex (male), disability, age (72), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. On June 20, 2013, he was notified that he was not selected for the position of Business Operations Specialist, GS-1101-13/14, advertised under Vacancy Announcement No. CIS-892101-ISM; and
2. On an unspecified date, he learned that he was not selected for the position Paralegal Specialist, GS-0960-9/12, advertised under Vacancy Announcement No. CIS-782256-COU.
In its February 24, 2014 FAD, the Agency, among other things, dismissed the formal complaint pursuant to 29 C.F.R. � 1614.107(a)(2), on the grounds that it was untimely filed. The Agency determined that Complainant received the Notice of Right to File a Formal Complaint of Discrimination (NRTF) on August 22, 2013, as supported by UPS tracking information. The NRTF clearly informed Complainant of the 15-day filing timeframe. Based on the date Complainant received the NRTF, his filing deadline was September 6, 2013. The record reflects, however, that Complainant filed his formal complaint on October 28, 2013.
On appeal, along with a series of arguments about attorneys' fees which are not the subject of the instant appeal, Complainant reiterates his contentions that each time he contacted Human Resources personnel by email to express dissatisfaction with his non-selection for both positions; he had in fact filed formal complaints. Complainant argues that it was the Agency who failed to properly process his complaints in both cases.
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.
Based on a thorough review of the record and consideration of the arguments on appeal, the Commission concludes that the Agency's dismissal of the formal complaint due to untimely filing was proper. Specifically, the record contains UPS proof of delivery indicating that the NRTF document, which was mailed on August 16, 2013, was delivered and left at the rear door of Complainant's residence on August 22, 2013. Complainant filed his complaint approximately 52 days beyond the expiration of his filing deadline. Complainant never denied receiving the NRTF on August 22, 2013, nor did he provide an adequate justification for not complying with the regulatory time frame.
The Agency's FAD 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 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
_9/23/16_________________
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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