0120113079
09-20-2013
Walter E. Nielsen, Complainant, v. Chuck Hagel, Secretary, Department of Defense, Agency.
Walter E. Nielsen,
Complainant,
v.
Chuck Hagel,
Secretary,
Department of Defense,
Agency.
Appeal No. 0120113079
Agency No. 2010PREN063
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated April 1, 2011, 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 September 28, 2011, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of national origin (Latino) when: (1) from April 2000 - April 2003, he was under compensated and should have been promoted to a GS-13; (2) in June 2003, management failed to issue his appraisal; (3) from January 2006 through January 2006, he had the additional duties of his predecessor, who was a GS-15, but he was only paid as a GS-13; (4) in July 2006, after receiving a level 5 rating, management did not promote him to a GS-15; (5) on an unspecified date, he was awarded only one share for his 2007 NSPS performance appraisal; (6) on an unspecified date he was awarded only one share for his 2008 NSPS performance appraisal; (7) on an unspecified date, he received a below average payout for his 2009 NSPS appraisal; (8) on May 9, 2008, management failed to nominate him for the Secretary of Defense Award for Excellence; (9) a few years ago, a female counterpart in another directorate was hired at a higher salary; and (10) on April 12, 2010, he learned that he was not selected for the Deputy Ancillary IPT position.
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.1
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 notice of the right to do so.
The record discloses that Complainant received the notice of right to file a formal complaint on August 24, 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 September 28, 2011, which is beyond the limitation period. On appeal, Complainant explains that he was busy catching up at work, that he had jury duty, and that he sought an extension of one week on September 8, 2010. Complainant does not explain why he requested a one-week extension, but then waited almost an additional three weeks to file his complaint. Based on this information, we conclude that Complainant has not offered adequate justification to warrant an extension of the time limit for filing the 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
September 20, 2013
__________________
Date
1 The Agency argued that Complainant's appeal was untimely filed. Complainant received the FAD on April 14, 2011. He provided proof, in response to the Agency's arguments, that he faxed his appeal to the Commission on May 13, 2011. As such, we deem the appeal timely filed.
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0120113079
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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