0120092099
06-26-2009
Robert Edwards, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Robert Edwards,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120092099
Agency No. ARSHAFTER08DEC05165
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated March 6, 2009, 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.
At the time of the events at issue, complainant was employed by the
agency as a supervisory clinical nurse at the Tripler Army Medical Center
in Honolulu, Hawaii. In an EEO complaint dated February 17, 2009,
complainant alleged that he was discriminated against on the bases of
national origin (Mexican) and age (55) when he was subjected to an ongoing
hostile work environment as result of the "bullying, abuse of authority
and harassment" by a senior army officer/physician from October 2007
through December 2008. Complainant asserted he complained to management
to no avail. Complainant alleged that the most recent incident occurred
on December 5, 2008, during a weekly department meeting, when the senior
officer stated to complainant in front of everyone, "[Complainant], you
have to just leave. You are as foreign to the orthopedic department
as oil is to vinegar." The agency dismissed the complaint, pursuant
to 29 C.F.R. � 1614.107(a)(2), due to the untimely filing of the formal
complaint. The instant appeal followed.
EEOC Regulation 29 C.F.R. � 1614.106(b) provides that a formal EEO
complaint must be filed within 15 days of receipt of the notice of right
to file issued by the EEO counselor. The record in the instant case
reveals that the EEO counselor issued complainant the notice of right
to file a formal EEO complaint by both certified and regular mail. The
notice specifically notified complainant that he had to file a formal EEO
complaint within 15 calendar days of its receipt. The record contains a
certified mail return receipt ("green card") indicating that complainant,
himself, signed for the notice on January 26, 2009. Therefore, in
order to meet the 15-day time limitation, he had until February 10,
2009 to file his complaint. Complainant concedes he did not file his
formal complaint, by hand-delivering it to the agency's EEO office,
until February 17, 20091, which is beyond the limitation period.
On appeal, complainant has not offered adequate justification to warrant
an extension of the time limit for filing the complaint. Complainant
asserts he did not receive the copy of the notice sent by certified mail,
but received the copy sent by regular mail on February 4, 2009. However,
as already noted, the record contains a copy of the green card receipt,
signed and dated January 26, 2009, by complainant. Complainant has
produced no evidence to counter this proof of service.
Accordingly, the agency's final decision dismissing complainant's
complaint as untimely filed is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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 (S0408)
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 (Z1008)
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
June 26, 2009
__________________
Date
1 The formal complaint is signed and dated February 17, 2009. The agency
asserts it received the complaint on February 20, 2009, and the copy of
the complaint in the file contains a received stamp reflecting that date.
However, we will consider February 17, 2009, as the date of filing.
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0120092099
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120092099