0120112426
02-23-2012
Chester L. Marcus, Jr., Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Chester L. Marcus, Jr.,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120112426
Agency No. ARUSAR11JAN00009
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
March 7, 2011 decision, dismissing his complaint of unlawful employment
discrimination in violation of 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 for untimely filing of the formal complaint.
BACKGROUND
At the time of events giving rise to this complaint,
Complainant worked as a Supervisory Public Affairs
Specialist at the Agency’s Mid-Atlantic Recruiting Battalion
in Lakehurst, New Jersey. On February 19, 2011, Complainant filed a
formal complaint alleging that the Agency subjected him to discrimination
on the basis of disability when, on December 6, 2010, he received a
Notice of Decision suspending him from duty without pay for 14 days
effective December 8, 2010.
On March 7, 2011, the Agency issued a final decision dismissing
the complaint pursuant to 29 C.F.R. § 1614.107(a)(2) due to the
untimely filing of the formal complaint. The Agency determined that
Complainant’s representative received the Notice of Right to File
on January 31, 2011. In that notice, Complainant’s representative
was informed that Complainant had the right to file a formal complaint
of discrimination within 15 calendar days of receipt of that notice.
Complainant’s representative did not file the complaint until February
19, 2011, which was beyond the 15-day limit. As a result, the Agency
dismissed the complaint as untimely filed.
On appeal, Complainant’s representative admits that she filed the
formal complaint 19 days after receipt of the Notice of Right to File
and requests that the Commission reverse the Agency’s dismissal of
Complainant’s complaint. In support, Complainant’s representative
states that the complaint was untimely due to her secretary’s reduced
work hours and her misreading the deadline as 15 business days instead
of calendar days.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. § 1614.106 requires the filing of a complaint
with the agency that allegedly discriminated against the complainant
within fifteen (15) days after the date of receipt of the notice of
final interview.
The record discloses that Complainant’s representative, who is an
attorney, received the Notice of Right to File on January 31, 2011.
Where a complainant is represented by an attorney, time frames for
receipt of materials are computed from time of receipt by the attorney.
29 C.F.R. § 1614.605(d). Although the Notice indicated that Complainant
had to file a formal complaint within 15 calendar days of its receipt,
Complainant’s representative did not file Complainant’s formal
complaint until February 19, 2011, 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. 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 23, 2012
Date
2
0120112426
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013