0120171850
09-21-2017
Byron F.,1 Complainant, v. Denise Turner Roth, Administrator, General Services Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Byron F.,1
Complainant,
v.
Denise Turner Roth,
Administrator,
General Services Administration,
Agency.
Appeal No. 0120171850
Agency No. GSA17COE0054
DECISION
Complainant filed an appeal with this Commission from the Agency's decision dated April 12, 2017, concerning his claim 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Small Business Specialist at the Agency's Tarrytown facility in Tarrytown, New York.
It is undisputed here that Complainant never filed a formal EEO complaint. The record discloses that during the counseling period, Complainant identified his claim as alleging that the Agency subjected him to reprisal for prior protected EEO activity under Title VII when, on or around December of 2016, he was denied the results of a management inquiry order by GSA management.
When the matter could not be resolved during EEO counseling, the Agency sent Complainant a notice of right to file a formal complaint to his address on record on March 14, 2017, by United Parcel Service (UPS). The record contains a copy of the UPS tracking system delivery notification, indicating the notice was delivered to Complainant's address on March 17, 2017. Although the notice indicated that Complainant had to file a formal complaint within fifteen (15) calendar days of its receipt, Complainant failed to file a formal complaint. Therefore, on April 12, 2017, the Agency notified Complainant that his case was closed because no formal EEO complaint had been filed.
In response, Complainant filed the instant appeal, disputing that he ever received the notice of right to file.
ANALYSIS AND FINDINGS
The EEOC regulation set forth at 29 C.F.R. � 1614.106(b) requires the filing of a formal complaint within fifteen (15) days of receiving the notice of the right to do so.
On appeal, Complainant concedes that he never filed a formal complaint, claiming he never received the notice of right to file one. However, beyond this bare assertion, the evidence of record, in the form of a tracking notice from UPS, indicates that a notice of right to file was issued by the Agency and delivered to Complainant's address of record on March 17, 2017. To date, there is no indication that Complainant has filed a complaint. On appeal, Complainant has not offered adequate justification to warrant an extension of the time limit for filing the complaint.
Upon review, we find that the Agency properly closed Complainant's case due to failure to file a formal complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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
September 21, 2017
__________________
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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