0120140321
04-24-2014
Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120140321
Agency No. DON (MC) 13-67856-02185
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated August 13, 2013, dismissing his complaint of unlawful employment discrimination. Complainant alleged violations 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Information Technology Specialist at the Agency's Marine Corps Center for Lessons Learned facility in Quantico, Virginia. On August 12, 2013, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American), sex (male), color (Black), and disability (back) when:
1. On February 19, 2010, Complainant's supervisor attempted to change Complainant's work hours;
2. On February 19, 2010, Complainant's supervisor issued Complainant a cell phone without any service;
3. On February 19, 2010, Complainant was assigned duties outside of his position description (Electronic Key Management System Security Officer and Security Manager);
4. On May 24, 2010, management appointed Complainant as the Responsible Officer for Consolidated Memorandum Receipt and two missing items "mysteriously showed up;"
5. Sometime in August 2011, Complainant's supervisor used his position to gather information about Complainant's conversation with the "HQTECOM" Information Assurance Manager;
6. From February 2010 to November 2012, Complainant's supervisor refused to provide Complainant a copy of his position description;
7. On September 21, 2012, Complainant received a Letter of Reprimand;
8. On October 24, 2012, Complainant's supervisor forced him to sign a "SERVMART" letter;
9. On March 7, 2013, Complainant received the "Notice of Decision on Administrative Grievance" dated February 19, 2013, stating that the Letter of Reprimand (issued November 14, 2012) would not be removed from Complainant's Official Personnel Folder;
10. On unspecified dates, Complainant's supervisor asked him questions about Complainant's personal life;
11. On unspecified dates, Complainant's supervisor made a comment that Complainant was abusing the leave system;
12. On several occasions, Complainant's supervisor asked about his family and stated, "I bet your (Complainant's) house is clean" and asked "what type of Italian food did you have;" and
13. On an unspecified date, Complainant's supervisor denied his request to attend IT training courses.
The record discloses that, on June 11, 2013, the Agency issued the Notice of Right to File a Discrimination Complaint. Complainant's attorney acknowledges that he received the Notice on June 18, 2013 and that he had until July 3, 2013 to file a formal complaint. On July 19, 2013, the Agency received a package, postmarked on June 27, 2013, from Complainant's representative. The package contained a blank and unsigned formal complaint from Complainant's representative. There was no information on the form, other than Complainant's name. On August 12, 2013, Complainant's representative sent an email to the Agency inquiring about the status of the formal complaint. The Agency informed Complainant's representative that the Agency had not received a signed and completed complaint. The Agency received Complainant's signed, completed complaint on August 12, 2013.
The Agency dismissed the complaint. The Agency reasoned that the complaint was not timely filed and that the Agency had not received a sufficient reason for extending the 15-day time limit.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.106(b) requires the filing of a written complaint with an appropriate agency official within fifteen (15) calendar days after the date of receipt of the notice of the right to file a formal complaint.
The regulation set forth at 29 C.F.R. � 1614.107(a)(2) provides that an agency shall dismiss a complaint which fails to comply with the applicable requirements and time limits contained in 29 C.F.R.� 1614.106, which, in turn, requires the filing of a signed statement from the person claiming to be aggrieved or that person's attorney, within fifteen days of receiving the notice of the right to do so.
Although Complainant's representative was aware of the requirements and time limits, Complainant did not file a signed, formal complaint until August 12, 2013, which is beyond the limitation period.
On appeal, Complainant's representative argues that the Agency received the blank complaint in time to notify Complainant's counsel of the defects and that, "unbeknownst to Counsel, an intern employed by his office for the summer inadvertently filed the blank form complaint form included with the Notice of Right to File instead of the completed and signed formal complaint." The Agency was under no obligation to notify counsel or to cure the defects.
We find that Complainant's representative has not offered adequate justification to warrant an extension of the time limit for filing the complaint pursuant to 29 C.F.R. � 1614.604(c). Upon review, the Commission finds that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), due to the untimely filing of the formal signed complaint.
CONCLUSION
Accordingly, we AFFIRM the Agency's final decision dismissing Complainant's complaint.
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 tends 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
April 24, 2014
__________________
Date
2
0120140321
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120140321