Armando A. Ortiz, Complainant,v.Thomas E. White, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionNov 6, 2001
01A14754_r (E.E.O.C. Nov. 6, 2001)

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