0120102441
09-21-2010
Jeffrey M. Walk, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Department of Defense Education Activity), Agency.
Jeffrey M. Walk,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(Department of Defense Education Activity),
Agency.
Appeal No. 0120102441
Agency No. DDFY10031
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated April 9, 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
On December 21, 2009, Complainant contacted an EEO Counselor regarding his claim of discrimination. The record indicated that Complainant received a notice of right to file a formal complaint via e-mail on February 18, 2010. In the e-mail, the EEO Counselor stated that he "attached a document which will identify for you what your next steps are." Further, the EEO Counselor asked Complainant to read the document and to ask him any questions. The EEO Counselor requested that Complainant sign the document and return it to him within three days. Complainant signed and provided the notice of right to file on February 19, 2010.
On March 22, Complainant filed his formal complaint. In his complaint, Complainant alleged that the Agency subjected him to discrimination on the basis of sex (male) when:
On October 22, 2009, the Principal of Johnson Primary School, Camp Lejeune, North Carolina School District, Dependent Elementary and Secondary Schools (DDESS), terminated Complainant from [Complainant's] position as Custodial Worker, WG-02-3566.
The Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(2) for filing the formal complaint in an untimely manner. Complainant appealed asserting that he was misled by the EEO Counselor.
ANALYSIS AND FINDING
The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. � 1614.106, which, in turn, requires the filing of a formal complaint within fifteen (15) days of receiving notice of the right to do so.
The record discloses that Complainant received the notice of right to file a formal complaint on February 19, 2010. 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 22, 2010, which is beyond the limitation period. On appeal, Complainant asserted that he was misled by the EEO Counselor. He believed the EEO Counselor informed him that he had to wait until the EEO Counselor's report was completed in order to file his formal complaint. We note that Complainant received a copy of the notice of right to file on February 18, 2010. In the email accompanying the notice, the EEO Counselor clearly stated that the notice provided Complainant with his "next steps." Further, the notice plainly indicated that Complainant had 15 calendar days to file his formal complaint.
Upon review, we find that Complainant has not offered adequate justification to warrant an extension of the time limit for filing the complaint. Complainant received a copy of the notice of right to file and was informed that the document contained his rights to file a formal complaint within 15 days. Therefore, we find that the Agency's dismissal of the complaint pursuant to 29 C.F.R. � 1614.107(a)(2) was appropriate.
CONCLUSION
Accordingly, the Commission AFFIRMS Agency's final decision.
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 21, 2010
__________________
Date
2
0120102441
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120102441