Ramchandra S. Singh, Complainant,v.John M. McHugh, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionFeb 8, 2013
0120121941 (E.E.O.C. Feb. 8, 2013)

0120121941

02-08-2013

Ramchandra S. Singh, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.


Ramchandra S. Singh,

Complainant,

v.

John M. McHugh,

Secretary,

Department of the Army,

Agency.

Appeal No. 0120121941

Agency No. ARCESAC11DEC05200

DECISION

Complainant filed a timely appeal with this Commission from the Agency's decision dated January 26, 2012, 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Civil Engineer-Technical Lead at the Agency's US Army Corps of Engineers facility in Sacramento, California.

On January 13, 2012, Complainant filed a formal EEO complaint alleging that the Agency subjected him to discrimination on the bases of race (Asian-Indian), national origin (Indian), religion (Hindu), and age (77) when, on December 1, 2011, he received a "3" rating of record for his 2011 performance appraisal for the period of November 1, 2010-October 31, 2011.

The Agency dismissed the matter pursuant to 29 C.F.R. � 1614.107(a)(2), due to the untimely filing of the formal complaint. The instant appeal followed.

ANALYSIS AND FINDINGS

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 the notice of the right to do so. Based on a thorough review of the record and consideration of the arguments on appeal, we conclude that the dismissal, due to the untimely filing of the formal complaint, was proper.

The record discloses that Complainant received the notice of right to file a formal complaint on December 16, 2011. As such, he needed to file his EEO complaint by December 31, 2011. Although the notice indicated that Complainant had to file a formal complaint within fifteen (15) calendar days of its receipt, it is undisputed that Complainant did not file his formal complaint until January 13, 2012, which is beyond the limitation period.

During the Agency's processing of the complaint, as well as on appeal, Complainant asks that the delay be excused. Complainant has asserted that on December 20, 2011, he had eye surgery and the doctor recommended that he rest for 3-4 days. He has also noted that December 24-25 was the Christmas holiday and the last week of December was a holiday period as well. As such, Complainant stated he could not file his formal complaint by December 31, 2011.

The Commission has consistently held, in cases involving physical or mental health difficulties, that an extension is warranted only where an individual is so incapacitated by his condition that he is unable to meet the regulatory time limits. See Davis v. United States Postal Service, EEOC Request No. 05980475 (August 6, 1998); Crear v. United States Postal Service, EEOC Request No. 05920700 (October 29, 1992). We find in the instant case that Complainant failed to demonstrate that he was so incapacitated by the various incidents and concerns such that the time limits should be waived in this case. We note that he concedes that he adequately recovered from his eye surgery within the limitation period. He has not justified why it took him nearly an additional three weeks to file his complaint.

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

February 8, 2013

__________________

Date

2

0120121941

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0120121941