0120120790
04-13-2012
Ghassan Ghannoum, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Ghassan Ghannoum,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120120790
Agency No. 200P06912011103575
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated November 10, 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
At the time of events giving rise to this complaint, Complainant worked as a Police Officer at the Agency's VAMC facility in West Los Angeles, California.
On October 21, 2011, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Middle Eastern), national origin (Lebanese), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964: when the Captain initiated an administrative investigation into allegations that Complainant had been observed sleeping on duty; when the Captain wrote a report of contact in which she fabricated information and stated that she was going to recommend disciplinary action against Complainant; and when the Captain violated Complainant's privacy by leaving the report of contact on a shared drive where it was read by another employee and accessible to others.
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.
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(b) which, in turn, requires the filing of a formal complaint within fifteen (15) days of receiving the notice of the right to do so.
The record discloses that the notice of right to file a formal complaint was received at Complainant's address of record on September 2, 2011. 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 October 21, 2011, which is beyond the limitation period.
On appeal, Complainant asserts that when his roommate accepted receipt of the notice of right to file a complaint on September 2, 2011, Complainant was on a five-week vacation. Complainant has not offered adequate justification to warrant an extension of the time limit for filing the complaint. It is undisputed that the notice was delivered to Complainant's address of record and accepted by an adult residing in his home. Complainant knew he had initiated EEO counseling before he left on an extended vacation and should have anticipated possible issuance of the notice during his absence. Complainant has not provided any evidence that he notified the EEO office that he would be on an extended vacation during this period. See Naveiras v. U.S. Postal Service, EEOC Appeal No. 05960625 (1997) (untimely filing of complaint excused when complainant presented proof that he had notified the agency that he would be on vacation but the notice of right to file was sent to him anyway). Moreover, assuming Complainant left for vacation as late as September 2, 2011, and was gone for five weeks, he would have returned on or around October 7, 2011. He does not explain why he then waited until October 21, 2011, to file the instant complaint, except that he had another EEO complaint which he was filing at that time.
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
April 13, 2012
__________________
Date
2
0120120790
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120120790