Leonard Winborn,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120110746
Agency No. 200J-0894-2010103406
DECISION
Complainant filed a timely appeal with this Commission from the October
18, 2010 Agency decision which dismissed 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.
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.
Complainant worked as a Cemetery Caretaker at the Agency’s Fort Snelling
National Cemetery in Minnesota. Complainant filed a formal complaint
alleging that the Agency subjected him to harassment and hostile work
environment on the basis of race (Black) when:
1. Complainant was parking the Pro-Gator on March 22, 2010, Person
A, the team leader, told Complainant that he did not need to park it in
the bay during the day time.
2. Although Complainant was informed on May 17, 2010, that he would
start training in the areas of supply and office, including timekeeping,
as of September 27, 2010, this has not occurred.
3. On May 18, 2010, a “noosed flamingo” was dangling from the
ceiling in front of his locker.
4. On June 7, 2010, Complainant was issued a proposed reprimand
for an incident which occurred on May 18, 2010.
5. On June 7, 2010, a bird was hanging from the ceiling by
Complainant’s wall locker.
6. On September 8, 2010, a co-worker accused Complainant of not
working an informed Complainant’s supervisor.
On appeal, Complainant has not raised any arguments regarding the
dismissal on the grounds of untimeliness.
The record discloses that the September 2, 2010 notice of right to file a
formal complaint (NORTF) was delivered to Complainant’s address by United
Parcel Service on September 8, 2010. The NORFT informed Complainant that
he had to file a formal complaint within 15 calendar days of receipt of
the NORTF. Complainant did not file his formal complaint until September
27, 2010, (date of postmark) which is beyond the 15-day limitation period
required for timely filing. Complainant has not shown that he was so
incapacitated that he could not file his complaint in a timely manner.
See Crear v U.S. Postal Service, EEOC Request No. 05920700 (October 29,
1992); Zelmer v. U.S. Postal Service, EEOC Request No. 05890164 (March
8, 1989). Moreover, Complainant has not offered adequate justification
to warrant an extension of the time limit for filing the complaint. .
CONCLUSION
The Agency’s dismissal of the 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
April 21, 2011
__________________
Date
2
0120110746
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
