0120152889
02-09-2017
Abraham G.,1 Complainant, v. Elaine L. Chao, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Abraham G.,1
Complainant,
v.
Elaine L. Chao,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120152889
Agency No. 201324909FAA05
DECISION
Complainant timely appealed to this Commission from the Agency's February 13, 2013 dismissal of his complaint of unlawful employment discrimination in violation of 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 Airway Transportation System Specialist at the Agency's Environmental System Support Center in Houston, Texas.
On January 28, 2013, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of disability (back injury) and age (60) by subjecting him to a hostile work environment including (but not limited to) the following incidents:
1. In September 2012, a coworker ("C1") physically and verbally harassed him by calling him profane names, using foul language when speaking to him, and pushing him into a wall;
2. On November 6, 2012, C1 disturbed him while he was taking a timed exam; and
3. On November 16, 2012, another coworker ("C2") who had been assigned to train him on equipment and software essential to performing his job duties, refused to train him.
On February 28, 2013, the Agency dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(4). Specifically, the Agency found that Complainant previously raised the same allegations in a negotiated grievance procedure, and therefore could not raise them again as an EEO complaint.
On March 6, 2013, Complainant initiated another complaint, identified in the record as Agency No. 201325029FAA05 ("Complaint 2"). Complaint 2 raised the same claims as those in the instant complaint, and the Agency dismissed it the same grounds. Complainant timely appealed the Agency's decision on Complaint 2 to this Commission. Upon review, we determined that the Agency failed to provide sufficient evidence to support its dismissal and ordered it to investigate Complainant's claims. See EEOC Appeal No. 0120132804 (Nov. 25, 2013). After acknowledging our decision and order, the Agency dismissed Complaint 2 a second time.
On or around January 19, 2014, Complainant appealed the Agency's second dismissal of Complaint 2 to this Commission. This time, he also included documentation to appeal the Agency's decision on the instant complaint, decided nearly a year earlier. As they were submitted together, Complaint 2 was initially docketed under the same appeal number as the instant complaint, but it has since been docketed separately as EEOC Appeal No. 0120170976. There is no indication that Complainant attempted to appeal the Agency's decision on the instant complaint prior to including it with his appeal of the Agency's second decision on Complaint 2.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.402(a), appeals to this Commission must be filed within thirty (30) calendar days after Complainant receives notice of the Agency's final action. Specifically, our regulations provide that if a Complainant is represented by an attorney of record, the 30-day time period shall be calculated from the receipt of the required document by the attorney. In all other instances, including this one, the time within which to appeal shall be calculated from the receipt of the required document by Complainant, in accordance with 29 C.F.R. � 1614.402(b). A document is deemed timely if it is delivered to this Commission in person or postmarked before the expiration of the applicable filing period, or, in the absence of a legible postmark, if it is received by mail within five days of the expiration of the applicable filing period.2
Complainant's Notice of Appeal, which he signed and dated January 19, 2014 states that he received the Agency's Final Decision on April, 29, 2013. The Agency's Final Decision included clear instructions on the time, place, and procedure for filing a timely appeal with this Commission. Based Complainant's stated date of receipt, in order to be considered timely, Complainant had to file his appeal no later than May 29, 2013. Complainant has not provided any explanation for the delay.
Accordingly, Complainant's appeal is DISMISSED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 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. The requests 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 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
February 9, 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.
2 Complainant erroneously submitted his appeals to the Agency instead of this Commission, so the filing date of record reflects the date the Agency received them, January 27, 2014. As it does not impact our finding in the instant complaint we exercise our discretion to disregard the error.
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