0120170743
03-31-2017
Lyle P,1 Complainant, v. Robert M. Speer, Acting Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Lyle P,1
Complainant,
v.
Robert M. Speer,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 0120170743
Agency No. ARCELROCK15DEC05054
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision (Dismissal) dated April 1, 2016, 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 the formal complaint.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked in an unspecified position at an unspecified Agency facility in Little Rock, Arkansas. On January 20, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American), sex (male), disability (Post Traumatic Stress Disorder, Depression, Adjustment Disorder), and reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when:
1. On an unspecified date Complainant was given a biased performance appraisal;
2. On an unspecified date Complainant was denied an unspecified accommodation;
3. On an unspecified occasion or occasions Complainant was harassed in an unspecified manner.
ANALYSIS AND FINDINGS
The record discloses that Complainant's attorney received the notice of right to file a formal complaint on January 4, 2016. 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 January 20, 2016, which is beyond the limitation period.
On appeal, Complainant argues that the Agency has not met its burden of establishing the date that Complainant received the notice of right to file (Notice). A review of the record, however, shows that the Agency mailed copies of the Notice to Complainant's attorney on December 31, 2015, and that Complainant's attorney signed a United States Postal Service Green Card Certified Mail Receipt, No. 7012 3050 0000 7767 5460 (Receipt) indicating receipt on January 4, 2016. Complainant's attorney signed the Receipt, printed his name, and also ticked the box marked "Addressee" as opposed to "Agent." We therefore find that the Agency has fully met its burden of establishing that the Notice was received on January 4, 2016. On appeal, Complainant has not offered adequate justification to warrant an extension of the time limit for filing the complaint.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
March 31, 2017
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120170743
3
0120170743