0120102564
11-03-2010
Gregory Hunt, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Gregory Hunt,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120102564
Agency No. ARCEERDC10APR01879
DECISION
On June 8, 2010, Complainant filed a timely appeal with this Commission from the Agency's decision dated June 1, 2010, 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.
BACKGROUND
In his complaint, Complainant alleged that the Agency subjected him to discrimination on the bases of race (African-American), national origin (U.S. Slave descent), sex (male), religion (Islam), color (Black), and reprisal for prior protected EEO activity when the Agency denied his request for reconsideration to have his performance appraisal ratings modified.
The Agency dismissed Complainant's complaint under 29 C.F.R. � 1614.107(a)(2) on the grounds that it was untimely filed. The Agency determined that Complainant received his notice of the right to file a formal complaint (hereinafter "Notice") on April 28, 2010, but it was not filed with the Agency until May 17, 2010, beyond the fifteen day time limit. The Notice informed Complainant of the 15 day time limitation and various physical addresses where the complaint could be filed. It instructed him to file the complaint in person or by mail. He filed the complaint by email on May 17, 2010.
CONTENTIONS ON APPEAL
Complainant contends that he sent the email from the office on Thursday, May 13, 2010. He writes that he was out of work sick the next day, and when he returned to work on Monday, May 17, 2010, he discovered this and other outgoing emails were held up. He provides a copy of an incident ticket he made on May 17, 2010, requesting service because the "outlook" [an email program] did not send any messages he tried to send starting May 13, 2010, and he got a mailbox limit message when he attempted to send an email that day, and no other warning. He submits a copy of the email with an attachment labeled "13may10 EEO formal complaint" that he attempted to send dated May 13, 2010, and argues that it was the Agency's email system that failed. In opposition to the appeal, the Agency argues that the FAD should be affirmed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.604(c) provides that the time limits under Part 1614 are subject to waiver, estoppel and equitable tolling. Complainant argues, in essence, that equity requires that the time limit be extended because he intended to send the complaint by email on May 13, 2010, and did not realize until May 17, 2010, that it was held up.
We disagree with Complainant's argument. The Notice instructed Complainant to deliver the complaint in person or mail to one of the various physical addresses provided. He nevertheless sent it by email. Since the initial email with the attached complaint did not timely go out, and the complaint was only received by the Agency after a second untimely emailing by Complainant on May 17, 2010, we find that the Agency properly dismissed the complaint for being untimely filed.
The Agency's dismissal 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
November 3, 2010
__________________
Date
2
0120102564
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120102564