0120141660
09-19-2014
Complainant, v. Maria Contreras-Sweet, Administrator, Small Business Administration, Agency.
Complainant,
v.
Maria Contreras-Sweet,
Administrator,
Small Business Administration,
Agency.
Appeal No. 0120141660
Agency No. 1014001
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision (Dismissal) 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Legal Assistant at the Agency's Office of Disaster Assistance facility at Forth Worth, Texas.
On December 3, 2013, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when Complainant was terminated from the Agency, effective May 10, 2013.1
The Agency dismissed the claim for untimely EEO Counselor contact, finding that Complainant did not contact an EEO Counselor concerning the matter until October 22, 2013.
The instant appeal followed.
ANALYSIS AND FINDINGS
EEOOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. EEOC regulations further provide that the agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission.
The informal complaint states that Complainant alleged that he:
was sent a letter dated May 10, 2013, which was caught up in some disregarded mail in his home and he did not notice it until around the end of September 2013. [Complainant] stated he also received mail from [the Agency] in September 2013, asking him to do a survey, and that is when he noticed the termination letter.
In his Formal complaint, Complainant states, "I received a termination of appt [sic] with effective date 5/10/13" but he does not state when he received it. On appeal, Complainant maintains that he "was terminated by letter dated in September [2013]".
Following a review of the record we find that Complainant has not provided sufficient justification for extending or tolling the time limit. We note that with regard to Complainant's allegation on appeal that he was terminated by letter dated September 2013, such a statement is contradicted by Complainant's statements in his Formal and informal complaints, as well as by a copy of the termination letter in the record that was dated April 11, 2013 and contained an effective date of April 19, 2013. With regard to Complainant's contention that the notice was "caught up in some disregarded mail in his home" we note that Complainant has not shown that he "reasonably should not have known" about the notice that was delivered to his address or that he exercised "due diligence" when the notice got "caught up in disregarded mail in his home." The Commission has held that where, as here, there is an issue of timeliness, "[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness." Guy, v. Department of Energy, EEOC Request No. 05930703 (January 4, 1994) (quoting Williams v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992)). Such an Agency burden would be impossible to meet if agencies were also held responsible for ensuring correspondence was opened upon delivery at the correct address.2 Furthermore the regulatory time limits themselves would be rendered meaningless if parties could claim that they received mail but misplaced it only to re-discover it at a later date and that the time limits should therefore run from the moment they re-discovered and opened the item of correspondence.
With regard to Complainant's allegations concerning the Agency's EEO office, we note that the Dismissal addressed this contention, finding that Complainant's case "was processed within the 30 day regulatory time-frame, pursuant to 29 C.F.R. � 1614.105(2)(a)." Finally, to the extent Complainant alleges that the termination violated his veterans' preference rights, we find that the Agency correctly found that Complainant fails to state a claim that can be adjudicated under the 29 C.F.R. Part 1614 EEO complaint process.
CONCLUSION
The Dismissal is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 9-18 (November 9, 1999). 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 19, 2014
__________________
Date
1 The Agency's Dismissal decision gives the effective date as May 10, 2013, but the termination later gives the date as April 19, 2013.
2 We note that Complainant has not alleged that the notice was sent to the wrong address and there is nothing in the record to suggest it was.
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0120141660
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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