Complainant,v.Ray Mabus, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Feb 12, 2015

0120133129 (E.E.O.C. Feb. 12, 2015)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Ray Mabus,
Secretary,
Department of the Navy,
Agency.

Appeal No. 0120133129

Hearing No. 570-2011-00094X

Agency No. 09-00168-00457

DISMISSAL OF APPEAL
By Notice of Appeal sent via facsimile on September 4, 2013, Complainant filed an appeal
with this Commission from the February 19, 2013 final order 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.

Complainant filed an EEO complaint dated March 9, 2011, alleging that he was subjected to
discrimination based on his race (Black), sex (male), and in reprisal for protected EEO activity
when:

1. On November 11, 2008, Complainant’s arrival and departure times were altered;
2. On November 11, 2008, Complainant’s arrival and departure times were observed by
his manager;
3. On January 4, 2009, Complainant was issued a 5-Day Suspension from January 4 to
January 8, 2009, for sending out an electronic mail message;
4. In February 2009, Complainant became aware that he was denied a reassignment to the
night shift; and
5. On November 7, 2007, Complainant was not treated fairly for overtime.

The Agency accepted issues (1) – (4) for further processing. The Agency dismissed issue (5)
pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact.

At the conclusion of the investigation on the accepted issues, the Agency provided
Complainant with a copy of the report of investigation and notice of his right to request a
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hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing
on her complaint. On January 10, 2013, the AJ issued a Decision Without Hearing finding no
discrimination.

The Agency issued a final order dated February 19, 2013. The Agency’s final order fully
implemented the AJ’s decision finding no discrimination.

Complainant filed a “Notice of Appeal” dated July 17, 2013, with the AJ at the EEOC’s Dallas
District Office. In a July 25, 2013 letter, the AJ noted that in his “Notice of Appeal”
Complainant stated he received the Agency’s final order on June 25, 2013, and was seeking to
appeal the AJ’s January 10, 2013 decision. The AJ advised Complainant that his appeal must
be filed with the EEOC’s Office of Federal Operations. Thereafter, Complainant filed the
present appeal with the Commission on September 4, 2013.

A review of the February 19, 2013 final order reveals that the Agency properly advised
Complainant that he had 30 calendar days after receipt of its final order to file his appeal with
the Commission and gave the appropriate address. On appeal, Complainant acknowledges
receiving the final order on June 25, 2013. The Commission has previously held that when
provided with the proper address, filing at the wrong address does not constitute a proper
filing. See Pacheco v. U.S. Postal Service, EEOC Request No. 05930700 (September 10,
1993) (appeal untimely when sent to wrong address despite receipt of proper instructions);
Meggitt v. U.S. Postal Service

, EEOC Appeal No. 01A40408 (February 3, 2004) (above
principle applied to a formal complaint that was untimely filed). On appeal, Complainant does
not provide any explanation for filing the appeal at the improper address. Upon review, we
find Complainant has not offered adequate justification for an extension of the applicable time
limit for filing his appeal.
Accordingly, Complainant's appeal is DISMISSED pursuant to 29 C.F.R. §1614.403(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
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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
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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

Date
February 12, 2015