0120122146
08-31-2012
Clifford D. Martin, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior, Agency.
Clifford D. Martin,
Complainant,
v.
Ken L. Salazar,
Secretary,
Department of the Interior,
Agency.
Appeal No. 0120122146
Hearing No. 541-2012-00053X
Agency No. BIA100522
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated March 15, 2012, dismissing 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. 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 complaint.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Home Living Assistant at the Agency's Wingate Elementary School facility in Ft. Wingate, New Mexico.
On September 29, 2011, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of sex (male) when, by letter dated March 15, 2010, he was informed that his contract would not be renewed for the 2010/2011 school year. The non-renewal was effective May 28, 2010.
The Agency accepted the claim and conducted an investigation. Thereafter, Complainant requested a hearing. The Agency filed a motion to dismiss before the Administrative Judge (AJ), arguing the Complainant's formal complaint had been untimely filed. The AJ granted the Agency's motion and dismissed the complaint as untimely filed. The Agency issued a final order adopting the AJ's dismissal.
The instant appeal followed without substantive comment.
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 discloses that Complainant received the notice of right to file a formal complaint on September 13, 2010. The notice was addressed to a Post Office box and signed for by Complainant's son. Although the notice indicated that Complainant had to file a formal complaint within fifteen (15) calendar days of its receipt, Complainant did not file his formal complaint until September 29, 2011, which is beyond the limitation period. Complainant asserted that his son did not tell him about the letter until September 18, 2010. He does not explain why it took him another eleven days to file his complaint.
The complaint may also be dismissed for failure to contact an EEO counselor in a timely manner. EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The non-renewal decision at issue had an effective date of May 28, 2010, but Complainant did not contact the EEO counselor until August 2, 2010, which is more than 45 days after the effective date. 29 C.F.R. � 1614.107(a)(2). In its motion to dismiss, to which Complainant did not respond, the Agency asserted that posters were posted in Complainant's work space and that Complainant was given an orientation handbook containing the relevant information regarding the EEO counseling deadlines.
On appeal, Complainant has not offered justification to warrant an extension of the time limit for filing the complaint or for his untimely EEO counselor contact.
Accordingly, the Agency's final decision dismissing Complainant's complaint 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
August 31, 2012
__________________
Date
2
0120122146
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122146