0120133296
09-22-2015
Complainant v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Complainant
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120133296
Hearing No. 430-2012-00288X
Agency No. 1K-281-0008-12
DISMISSAL OF APPEAL
By Notice of Appeal postmarked September 3, 2013, Complainant filed an appeal with this Commission concerning his EEO 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., the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., and Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), 42 U.S.C. � 2000ff et seq.
The record reveals that the EEOC Administrative Judge (AJ) issued a decision on April 3, 2013, finding that Complainant failed to establish that he was subjected to discrimination and a hostile work environment on the bases of sex (male), race (African American), disability, age, and genetic information. The AJ's decision stated that if the Agency did not issue a decision within 40 days, Complainant might file an appeal to the Commission. As Complainant, through his attorney, noted on appeal, the Agency never issued a final decision after it received the AJ's decision.
EEOC Regulation 29 C.F.R. � 1614.109(i) states that if an Agency does not issue a final decision within 40 days of receipt of the AJ's decision, then the decision of the AJ shall become the final action of the Agency. Further, EEOC Regulation 29 C.F.R. � 1614.402(a) states that an appeal must be filed within 30 days of an Agency's final action. Therefore, to be considered timely, Complainant must have filed the appeal within 30 days of the date when the AJ's decision became the final action of the Agency.
After a review of the record, we determine that the AJ's decision became the Agency's final action on May 13, 2013. Complainant would have had to file an appeal no later than June 12, 2013, to be considered timely. The record reveals that Complainant filed the appeal on September 3, 2013, which is more than two months beyond the timeframe for the appeal to be considered timely. Complainant has not provided any justification for extending the requisite time limit.
CONCLUSION
Accordingly, Complainant's September 3, 2013, appeal is hereby DISMISSED. See 29 C.F.R. � 1614.403(c).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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, 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 (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:
_______________________________nature
Carlton M. Hadden, Director
Office of Federal Operations
September 22, 2015
Date
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