0120100287
04-19-2010
Gene Keepper, Complainant, v. Lisa P. Jackson, Administrator, Environmental Protection Agency, Agency.
Gene Keepper,
Complainant,
v.
Lisa P. Jackson,
Administrator,
Environmental Protection Agency,
Agency.
Appeal No. 0120100287
Agency No. 20090069R06
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated August 28, 2009, 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 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.
In his complaint, complainant alleged that he was subjected to
discrimination on the bases of sex (male), disability (insomnia and sleep
apnea, depression, anxiety, knee and ankle disability), age (46 years
at time of incidents), and reprisal for prior protected EEO activity
under a statute that remains unspecified in the record when:
1. On May 4, 2009 complainant's request to work at home as a reasonable
accommodation was denied;
2. During the pay periods ending May 23, June 6, June 20, July 4, and July
18, 2009, complainant was directed to do no work and remain home on all
Tuesdays and Thursdays unless the doctor released him for full time duty;
3. On May 5, 2009, complainant was denied an assignment away from the
office;
4. On June 5, 2009, complainant was treated differently regarding daily
flexible schedule sign-in requirements;
5. During pay periods ending May 23, June 6, June 20, July 4, and July
18, 2009, complainant was charged leave without pay (LWOP) rather than
administrative leave by a management official;
6. On May 21, 2009, another management official required complainant to
submit additional medical documentation or be considered absent without
leave (AWOL); and
7. On March 23, 2009, complainant's Person with a Disability (PWD)
determination request was denied due to insufficient information.
The record discloses that complainant received and signed the notice of
right to file a formal complaint on June 26, 2009. 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 August 5, 2009, which is beyond the limitation period.
On appeal, complainant raises a number of issues, but fails to address
the fact that his formal complaint was untimely-filed. Complainant has
not offered adequate justification to warrant an extension of the time
limit for filing the complaint.
Accordingly, the agency's final decision dismissing complainant's
complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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 (S0408)
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 (Z1008)
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
April 19, 2010
__________________
Date
2
0120100287
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120100287