01a60773
03-28-2006
Floyd M. Thomas, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Floyd M. Thomas v. Department of the Army
01A60773
March 28, 2006
.
Floyd M. Thomas,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A60773
Agency No. ARCEVICK05AUG10566
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision, dated October 6, 2005, pertaining to 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.
The Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.
On September 29, 2005, complainant filed a formal complaint based on race.
On October 6, 2005, the agency issued the instant final decision,
dismissing the complaint on the grounds that it was untimely filed.
The agency determined that complainant and his attorney received the
Notice of Right to File a Discrimination Complaint (hereinafter �Notice�)
on September 12, 2005, but that complainant waited more than fifteen
days to file the formal complaint.
On appeal, complainant acknowledges that his complaint was untimely
filed. Complainant argues, however, that �around September 27, 2005,
�Hurricane Katrina' had knocked out the power in the Jackson-Vicksburg
area . . . there was no telephone, computer or any type of communication
to contact my attorney . . . .�<1>
In response, the agency asserts that complainant was provided with
the Notice approximately two weeks after Hurricane Katrina arrived.
Both complainant and his attorney received the Notice on September 12,
2005. The agency argues that the agency was open; that it was delivering
mail and; and that complainant's attorney's office was open for business.
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.
The record in this case indicates that complainant received the Notice
on September 12, 2005. The Notice informed complainant that he had
fifteen days from the date of receipt of the Notice in which to file
a formal complaint. The record further reflects that complainant did
not file a formal complaint within the fifteen days of his receipt but
instead filed the formal complaint two days later. Complainant contends
that Hurricane Katrina affected the area where his attorney was located;
however, complainant does not assert that he himself was seriously
impacted by the storm. The Commission finds that complainant has failed
to present adequate justification, pursuant to 29 C.F.R. � 1614.604(c)
for extending the filing period.
The agency's final decision dismissing the instant complaint on the
grounds that it was untimely filed was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
March 28, 2006
__________________
Date
1Complainant's address of record is in
Eudora, Arkansas. The address of record of his attorney is in Jackson,
Mississippi.