0120112798
08-05-2013
Gerald B. Chandler, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Gerald B. Chandler,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120112798
Agency No. 200P-0777-2011101273
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated April 15, 2011, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 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 his formal complaint.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Program Analyst at the Long Beach Employee Education Resource Center, in Long Beach, California. On March 3, 2011, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Caucasian), disability, and reprisal for prior protected EEO activity when from August 2010 through January 2011; he was subjected to harassment/hostile work environment.1
On February 3, 2011, Complainant was mailed the Notice of Right to File a Discrimination Complaint which he received on February 7, 2011. Complainant filed his formal complaint on March 3, 2011. The Agency, in a Final Agency Decision (FAD) dated April 15, 2011, dismissed Complainant's complaint as untimely, as he had filed it beyond the regulatory 15-calendar day filing period. The Agency in a letter dated April 4, 2011, offered Complainant the opportunity to provide an explanation for his untimely filing. He explained that he had never filed a complaint by himself, and he did not understand the complicated process. The Agency, through its database found that Complainant had previously filed an EEO complaint and in the instant case had been sent information addressing the processing timeframes. Accordingly, the Agency found that Complainant's explanation was not sufficient to waive the applicable time limits. Therefore, the complaint was dismissed in its entirety pursuant to 29 C.F.R. 1614.107(a)(2) for failing to file a formal complaint within the 15-day time frame.
CONTENTIONS ON APPEAL
On appeal, Complainant argues for equitable tolling of his complaint. He maintains that the Agency failed to provide him with an opportunity to fully explain the reasons for his untimely filing. Further, he contends that he was mislead by the EEO staff in that he believed that the Agency's attempt to resolve the matter through mediation tolled the time for filing his complaint. Additionally, he maintains that he did not recognize that he had received the Notice of Right to File because it was embedded in a letter dated February 3, 2011, from the EEO Counselor. He argues that once he discovered that this was the Notice of Right to File, he did not know where to send his complaint so he sent it to the EEO Counselor. Finally, Complainant asserts that the articulation of his allegations to the EEO Counselor on February 11, 2011, should arguably be construed as the filing of his formal complaint.
In response, the Agency requests that the FAD be affirmed. The Agency contends that Complainant's appeal statement fails to offer any justifiable explanation as to why his complaint should not be dismissed on procedural grounds.
ANALYSIS AND FINDINGS
The record discloses that Complainant received the Notice of Right to File a Formal Complaint on February 7, 2011. 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 March 3, 2011, which is beyond the limitation period. On appeal, Complainant has not offered adequate justification to warrant an extension of the time limit for filing the complaint. The record shows that Complainant had prior experience with the EEO process. Moreover, the record shows that Complainant received documentation which listed the filing deadline. Additionally, the fact that Complainant did not fully read the EEO Counselor's letter which contained the Notice to File a Formal Complaint is not sufficient to waive the applicable time limits. Finally, Complainant's argument that the verbal recitation of his claims should be construed as his formal complaint fails because it is prohibited by EEO regulations. Therefore, we find that Complainant has failed to provide information that we find is sufficient to waive the applicable time limits. The complaint is hereby dismissed in its entirety for failure by Complaint to file his formal complaint in a timely manner.
CONCLUSION
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
_8/5/13_________________
Date
1 Complainant raised 17 separate incidents to support his claim of harassment.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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