0520140207
09-19-2014
Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Request No. 0520140207
Appeal No. 0120131338
Agency No. ARPOM12NOV04759
DENIAL
Complainant timely requested reconsideration of the decision in Complainant v. Department of the Army, EEOC Appeal No. 0120131338 (October 31, 2013). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(c).
In the appellate decision, Complainant, a former employee of the Agency's Defense Language Institute Foreign Language Center, filed a formal complaint alleging that the Agency subjected him to harassment and discrimination on the basis or religion (Presbyterian) when: his requests to attend an Instructor Certification Course were ignored and, on two occasions, the co-chairman of his department tried to convert him to the Mormon religion. Complainant also stated that he was discriminated against when he was terminated from his probationary position on November 2, 2012. The Agency dismissed Complainant's complaint for untimely filing of the formal complaint. The Agency noted that Complainant was given a notice to file a formal complaint on December 13, 2012, and was notified that he had fifteen (15) calendar days in which to file his formal complaint. The period for filing his formal complaint expired on December 29, 2012. Complainant however did not file his complaint until January 2, 2013, which was beyond the limitation period. Complainant argued that his representative's office was closed from December 15, 2012 through January 1, 2013. The Commission found however that this did not warrant an extension of the time limit for filing the complaint.
REQUEST FOR RECONSIDERATION CONTENTIONS
Complainant contends that the Commission erred in affirming the Agency's dismissal. Complainant asserts that the Commission ignored the mutually agreed upon counseling extension into which he and the Agency entered. Complainant explains that he and the Agency mutually agreed to a ninety (90) day extension of the informal counseling period on December 4, 2012, due to the Christmas holiday season. During the extension period, Complainant received a "Right to File a Formal Complaint Letter" ten days after the agreement of the extension. Believing that there was an extension of the informal process in place, Complainant's representative closed his business for a two week period beginning December 15, 2012 and reopened it on January 2, 2013. Complainant through his representative thereafter filed the formal complaint on January 2, 2013.
Complainant asserts that the Agency's dismissal due to untimeliness is therefore incorrect and he raises the doctrine of unclean hands. Complainant maintains that to subvert a mutually agreed extension in the manner used by the Agency flies in the face of fairness and justice.
In response, the Agency asks that the request for reconsideration be denied. The Agency argues that if Complainant needed an extension for the filing his formal complaint he should have asked for one.
ANALYSIS AND FINDINGS
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to deny the request. We find that Complainant failed to show that the appellate decision involved a clearly erroneous interpretation of material fact or law; or that the appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. We find that contrary to Complainant's argument, the record shows that Complainant received a notice to file a formal complaint, on December 13, 2012, after completing the EEO Counseling period. The notice that Complainant received clearly indicated that he had to file his formal complaint within fifteen (15) calendar days of its receipt. Notwithstanding, he did not file the formal complaint until January 2, 2013, which was five days beyond the limitation period. We are not persuaded by Complainant's claim that the extension he and the Agency signed justified the untimely filing of his formal complaint. We note in this regard that the extension clearly stated that "[a]t or before the end of this period, the final interview will be conducted and you will be advised of your further rights . . . ." The Agency, in compliance with the extension's language, advised Complainant on December 13, 2012 what his rights were, including the right to file the formal complaint within fifteen calendar days; a formal complaint that the record shows both Complainant and his representative signed and dated on December 14, 2012.
We agree that Complainant has not provided a valid reason to warrant an extension of the time limit for filing the complaint. The Commission has long held that whether a Complainant has a representative or not, he or she is ultimately responsible for timely compliance with our regulations. Accordingly, the decision in EEOC Appeal No. 0120131338 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.
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
__9/19/14________________
Date
2
0520140207
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520140207