0120110350
12-16-2011
Jesse Martinez, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Jesse Martinez,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120110350
Agency No. 200307632010102572
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated September 10, 2010, 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.
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 Supply Technician, GS-6, at the Agency’s Consolidated
Mail Outpatient Pharmacy in Lancaster, Texas. On August 4, 2010,
Complainant filed a formal complaint alleging that the Agency subjected
him to discrimination on the basis of national origin (Hispanic) when
he received a 3-day suspension.
ANALYSIS AND FINDINGS
The record discloses that Complainant received the notice of right to
file a formal complaint on July 9, 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 August 4, 2010, 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. The record
contains a handwritten statement as follows:
On around 7-16-10 I was out of town and [asked] my [representative]
to mail my EEO complaint and he [told] me he mail[ed] the complaint.
I guess it got lost in the mail. So we fax in the complaint on 8-4-10.
Complainant’s representative submitted a similar statement asserting
that he mailed the complaint on July 16, 2010. We are not persuaded.
Complainant has not produced proof of mailing or any other documentary
evidence that the complaint was timely mailed. Complainant failed to
present adequate justification, pursuant to 29 C.F.R. § 1614.604(c)
for extending the filing period.
CONCLUSION
For the foregoing reasons 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
December 16, 2011
__________________
Date
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0120110350
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120110350