0120113191
02-28-2013
Alex J. Tripp, Complainant, v. Michael B. Donley, Secretary, Department of the Air Force, Agency.
Alex J. Tripp,
Complainant,
v.
Michael B. Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120113191
Hearing No. 410-2010-00497X
Agency Nos. 9R1M10036C and 9R1M09086
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's dismissal of his equal employment opportunity (EEO) complaints alleging 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., 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 a General Supply Technician, GS-09. The record reveals that Complainant filed both an individual complaint and a class complaint.
Individual Complaint - Complaint No. 9R1M09086
On May 13, 2009, Complainant filed an individual complaint, Complaint No. 9R1M09086, where he maintained that he was subjected to discrimination on the bases of race (Black), sex (male), and age (47), when, on or around February 5, 2009, he became aware that he was nonselected for promotion to a Supervisory Supply Specialist (Provisioning) position on Internal Vacancy Announcement Number 08NOV687672, and was nonselected for promotion to a General Supply Specialist position.
After an investigation was completed, on November 30, 2009, Complainant was notified via a letter that he had the right to request either a hearing before an EEOC Administrative Judge or a Final Agency Decision (FAD). When Complainant failed to respond within the allotted time period, he was sent a letter on January 6, 2010, informing him that a FAD would be issued.
On September 24, 2010, Complainant sent a request for a hearing to an EEOC Administrative Judge (AJ). Both parties submitted motions on the issue of the timeliness of Complainant's request. On May 18, 2011, the AJ issued an order dismissing the hearing request on Complaint No. 9R1M09086 as being untimely. Specifically, the AJ found that Complainant received his Notice of Right to Request a Hearing on December 1, 2009, and he should have requested a hearing by January 2, 2010. (January 1, 2010 was a federal holiday). The AJ held that Complainant filed his Request for a Hearing more than nine months after the time for requesting a hearing had elapsed, and that he provided no explanation that would require waiver. Thus, his request for a hearing was untimely. The Agency was ordered to complete a FAD.
Class Complaint - Complaint No. 9R1M10036C
On December 4, 2009, Complainant was issued a Notice of Final Interview (Notice) regarding Complaint No. 9R1M10036C, where Complainant indicated that he wanted to file a class complaint. The Notice provided instructions and an address indicating where Complainant could file his complaint. The Notice also informed him that he had 15 calendar days after its receipt to file his formal complaint. Complainant received the Notice on December 5, 2009. Therefore, his last day to file a formal complaint was December 21, 2009. Complainant filed his formal complaint on January 4, 2010, with the EEOC office in Atlanta, Georgia, which was not the address listed on the Notice.
In his formal complaint, Complainant alleged that he was subjected to discrimination based on age (47) when, in October 2008, he was not selected for a General Supply Specialist position. Thereafter, Complainant discovered in October 2008, that the announcement listed an age limit which read that "applicants must not have reached their 35th birthday prior to appointment." Complainant also claimed that on March 16, 2009, he contacted an EEO Counselor but was not counseled regarding class complaints.
When the Agency did not receive Complainant's formal complaint, the Agency on February 5, 2010, notified Complainant and his representative that it had closed his class complaint for failure to pursue. Thereafter, on February 25, 2010, Complainant mailed his formal class complaint to the EO office. On March 15, 2010, Complainant's representative wrote the EO office asking that the Agency's dismissal of the complaint for failure to pursue be rescinded. The Agency indicated that Complainant's claim should also be dismissed for untimely filing his formal complaint.
On May 23, 2011, Complainant filed an appeal on Complaint No. 9R1M10036C, the class complaint that was closed for failure to pursue; however, he attached the hearing dismissal order regarding his individual complaint 9R1M09086.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that his hearing request was late because he was "stressed out" and was taking care of sick relatives. He also maintained that he was confused about the EEO process. He argues that his formal complaint should be deemed timely, even though it was sent to the wrong address. Complainant contends that when he attempted to correct his error on two occasions, February 25, 2010, and again on March 15, 2010, the Agency did not respond.
In response, the Agency requests that the Commission dismiss the appeal concerning the individual complaint, Complaint No. 9R1M09086, as being premature. The Agency maintains that since Complainant's request for a hearing was dismissed, he was only entitled to a FAD, which has not been issued.
Further, with respect to Complaint No. 9R1M10036C, the Agency contends that this matter was properly closed for failure to pursue or alternatively, should be dismissed for untimely filing of a formal complaint. The Agency argues that even if Complainant had mailed the formal complaint to the correct address, he would have still been untimely. The Agency states that Complainant was given the correct filing information but still filed his complaint in an untimely manner.
ANALYSIS AND FINDINGS
After a review of the record in its entirety, including consideration of all statements submitted on appeal, we find that Complainant's appeal concerning Complaint No. 9R1M09086 is premature because a FAD has not yet been issued. Accordingly, this appeal is hereby DISMISSED. We do, however, find that the Agency has not provided an explanation for why a FAD has not yet been issued in this matter given that the AJ's order dismissing the hearing request was dated May 18, 2011.
Further, with regard to Complainant's class complaint, Complaint No. 9R1M10036C, which was dismissed for failure to pursue and/or in the alternative untimely filing a formal complaint, 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.
In this case, the record discloses that Complainant received the Notice on December 5, 2009, and as such his last day to file a formal complaint was December 21, 2009. Although the notice indicated that Complainant had to file a formal complaint within fifteen calendar days of its receipt and gave the correct address where it should be sent, Complainant did not file his formal complaint until January 4, 2010, and sent it to the wrong address.
On appeal, Complainant argues that the delay was attributable to stress and the care for sick relatives. When a Complainant claims that a physical condition prevents him from meeting a particular filing deadline, we have held that in order to justify an untimely filing, the Complainant must be so incapacitated by the condition so as to render him or her physically unable to make a timely filing. See Zelmer v. USPS, EEOC Request No. 05890164 (March 8, 1989). The same is true regarding claims of incapacity related to psychiatric or psychological conditions. See Crear v. USPS, EEOC Request No. 05920700 (October 29, 1992). There is nothing in the record reflecting that Complainant was so incapacitated during the applicable fifteen-day period as to have prevented him from timely filing his formal complaint. Moreover, he has not offered any other justification that would warrant an extension of the time limit for filing the formal complaint. We note in this regard that Complainant had a representative or legal counsel during the processing of these complaints. As such, we find Complainant's Complaint No. 9R1M10036C was properly dismissed for untimely filing of his complaint and we AFFIRM that dismissal.1
CONCLUSION
Complainant's appeal concerning Complaint No. 9R1M09086 is DISMISSED. The Agency will comply with the Order below. The Agency's dismissal of Complainant's class complaint, Complaint No. 9R1M10036C for untimely filing of the formal complaint, is AFFIRMED.
ORDER
The Agency is order to take the following action:
Within sixty (60) days of the date this decision becomes final, the Agency shall issue a final decision addressing the merits of Complaint No. 9R1M09086 with appeal rights to the Commission.
The Agency shall provide a copy of its final decision to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (Nov. 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).
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
__2/28/13________________
Date
1 Because of our decision to affirm the Agency's dismissal of Complaint No. 9R1M10036C on the grounds of untimely filing of the formal complaint, we do not find it necessary to address the Agency's alternate grounds for dismissal.
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0120113191
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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