01A14754_r
11-06-2001
Armando A. Ortiz, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Armando A. Ortiz v. Department of the Army
01A14754
November 6, 2001
.
Armando A. Ortiz,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A14754
Agency No. 0009A0950
DECISION
Complainant appealed to this Commission from the agency's June 6,
2001 dismissal of his employment discrimination complaint. Complainant
alleged discrimination on the bases of race (Caucasian), national origin
(Hispanic), and in reprisal for prior EEO activity when he was not
selected for the position of Aircraft Electrician Leader, WL-2892-10,
under Vacancy Announcement 041219JS0.
The agency dismissed the complaint for failure to file a timely formal
complaint. Specifically, the agency noted that complainant received
his notice of right to file a formal complaint on December 4, 2000,
but failed to file his complaint until May 9, 2001.
To explain his delay in filing, complainant argues that he was not
given the notice on December 4, 2000, but rather in mid-December 2000.
According to complainant, the counselor instructed complainant to
back-date the notice. Additionally, complainant contends that the EEO
Counselor informed complainant that she was still attempting to resolve
his claims, and would get back together with him after the (presumably
Christmas) holidays. Complainant contends that the EEO Counselor never
contacted him again, never answered any of his calls, and never provided
any further information concerning his claims. He argues that he only
learned of the need to file a formal complaint after being told in April
2001 that his complaint was �closed.�
Generally, complainants must file their formal complaints within
fifteen (15) calendar days of receiving the right to do so. See 29
C.F.R. � 1614.106(b); see also 29 C.F.R. � 1614.105(d). The agency
may dismiss claims that fail to comply with this time limit. See 29
C.F.R. � 1614.107(a)(2). However, this time limit is subject to waiver,
estoppel, and equitable tolling. 29 C.F.R. � 1614.604(c).
Complainant ably explained his failure to file the complaint until
fifteen days after he received the notice in mid-December 2000. However,
complainant provided insufficient justification for his failure to take
action from January until May 2001. Therefore, the Commission finds that
complainant's formal complaint was untimely, and the agency's dismissal
is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
November 6, 2001
__________________
Date