0120111731
09-07-2012
Haroll J. Austin, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Haroll J. Austin,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120111731
Hearing No. 450-2010-00146X
Agency No. ARRRAD09MAR01216
DISMISSAL OF APPEAL
By Notice of Appeal postmarked January 28, 2011, Complainant filed an appeal with this Commission from the Agency's December 2, 2010 final action concerning his EEO complaint of unlawful employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission DISMISSES Complainant's appeal.
BACKGROUND
Complainant filed a formal complaint alleging that he was subjected to discrimination on the bases of age (60) and in reprisal for prior EEO activity when he was terminated during his probationary period effective October 29, 2008, for illegal use of a controlled substance, marijuana, stemming from a drug test taken on September 30, 2008.
Following an investigation of Complainant's complaint, Complainant requested a hearing on his complaint before an EEOC Administrative Judge (AJ). The AJ held a hearing on the matter on September 15, 2010, and found Complainant failed to prove that he was subjected to discrimination as alleged. On November 3, 2010, the AJ issued an Order Entering Judgment on behalf of the Agency. Thereafter, the Agency its final action dated November 22, 2010, fully implementing the AJ's decision.
On appeal, Complainant acknowledges that he received the Agency's final action on December 20, 2010. A review of the final order reveals that the Agency properly advised Complainant that he had 30 calendar days after receipt of its final action to file his appeal with the Commission. On appeal, Complainant acknowledges that his appeal was untimely filed; however, he states that the delay in filing was due to Person X who, although not his representative, was giving him assistance on his complaint. Upon review, we find Complainant has not offered adequate justification for an extension of the applicable time limit for filing his appeal with the Commission.
Accordingly, Complainant's January 28, 2011 appeal is DISMISSED.
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
September 7, 2012
__________________
Date
2
01-2011-1731
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120111731