0120121417
06-12-2012
Uche G. Onwukanjo, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Uche G. Onwukanjo,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120121417
Agency No. ARJACKSON11OCT04552
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated January 6, 2012, dismissing a formal 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. 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 as a Records clerk at the Agency's Moncrief Army Hospital Fort Jackson, SC. On December 8, 2011, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination in reprisal for prior protected activity
On January 6, 2012, the Agency issued a final decision. The Agency dismissed the formal complaint on the grounds that it was not timely filed. The Agency found that Complainant received the notice of right to file his complaint on November 21, 2011, but that he did not file his complaint until December 8, 2011, beyond the 15-day time limit set by the regulations.
CONTENTIONS ON APPEAL
On appeal, Complainant claims that he was overwhelmed at school because of the examination season, that the notice of the right to file a formal complaint contained an incorrect reference to the initial EEO contact date which confused him, and that a medical condition "exacerbated not reading through thoroughly. I just saw the date and the medical condition kicked in and I assumed I had more time."
ANALYSIS AND FINDINGS
The record discloses that Complainant received the notice of right to file a formal complaint on November 21, 2011. Although the notice indicated that Complainant had to file a formal complaint within fifteen calendar days of its receipt, Complainant did not file his formal complaint until December 8, 2011, which is beyond the limitation period. Regarding Complainant's appellate argument, the Commission notes that when a complainant claims that a physical condition prevents him from meeting a particular deadline, we have held that in order to justify an untimely filing, the complainant must be so incapacitated by the condition as to render him physical unable to make a timely filing. See Zelmer v. USPS, EEOC Request No. 05890164 (March 8, 1989. The same is true regarding claims of incapacity related to psychiatric or psychological conditions. See Crear v. USPS, EEOC Request No. 05920700 (October 29, 1992). The record here contains nothing to support a contention that Complainant was so incapacitated during the applicable fifteen-day period so as to prevent a timely filing of the formal complaint. Therefore, Complainant has not offered adequate justification to warrant an extension of the time limit for filing the complaint.
CONCLUSION
The Agency's final decision dismissing Complainant's formal complaint for the reason stated herein, 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
June 12, 2012
__________________
Date
2
0120121417
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120121417