0120121784
07-18-2012
Tom E. Sager, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Tom E. Sager,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120121784
Agency No. ARLEWIS11FEB00825
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated February 15, 2012, dismissing a formal 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.
BACKGROUND
During the period at issue, Complainant worked as a Pest Controller at the Agency's Joint Base Lewis - McChord facility in Washington.
In October 2010, Complainant, by letter from his attorney, initiated contact with an EEO counselor asserting he was being subjected to discrimination.1 An extended counseling period followed. On October 11, 2011, a Notice of Right to File a Complaint (hereinafter referred to as the "Notice to File") was sent to Complainant's attorney by certified mail. Complainant subsequently filed a formal EEO complaint alleging that he had been subjected to hostile work environment on the bases of disability, age, and in reprisal for prior protected EEO activity.
On February 15, 2012, the Agency issued its final decision dismissing the formal complaint, pursuant to 29 C.F.R. � 1614.107(a)(2), on the grounds that it was not timely filed. The Agency found that Complainant's attorney of record received the Notice to File by certified mail on October 13, 2011, but that the formal complaint was not filed until December 13, 2011,2 beyond the 15-day time limit set by the regulations. The instant appeal followed.
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(b) which, in turn, requires the filing of a formal complaint within fifteen (15) days of receiving the notice of the right to do so.
The record establishes that Complainant's attorney of record received the Notice of Right to File on October 13, 2011, by certified mail. The notice clearly indicated that Complainant had to file a formal complaint within fifteen (15) calendar days of its receipt. The record contains a letter dated December 14, 2011, from the Complainant's attorney filing the formal complaint, which was received in envelope postmarked December 16, 2011. These dates are well beyond the 15-day limitation period.
Complainant's attorney argues that the limitation period should be expanded because he was out of the office when the Notice arrived, and a receptionist (not his employee) placed the Notice "in a stack of mail and it was not opened until several weeks later." He states that his mother was undergoing cancer treatments in 2010 and 2011, and that he was therefore compelled to travel to her home on numerous occasions to assist in her care. Complainant's attorney notes that the Agency was aware that he was out of state for much of 2011, and that the Agency was further aware, "that I had been having difficulty keeping up with my legal work due to the many absences from my office."
We have reviewed the appellate arguments, but nevertheless determine that Complainant has not offered adequate justification to warrant an extension of the time limit for filing the formal complaint.
CONCLUSION
The Agency's final decision dismissing Complainant's complaint for the reason discussed above 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
July 18, 2012
__________________
Date
1 This letter, according to a statement from Complainant, was personally delivered to the Agency by Complainant and his attorney. It is date-stamped as received on October 22, 2010.
2 Although the Agency's decision indicates the formal complaint was filed on December 13, 2011, the record contains a letter from Complainant's attorney filing the complaint was dated December 14, 2011, and was received in an envelope postmarked December 14, 2011.
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0120121784
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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