0120071342
04-20-2007
Domenic L. Amato, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Domenic L. Amato,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120071342
Agency Nos. AREUSTUT05MAR08262
AREUSTUT05APR07864
DECISION
Complainant filed an appeal with this Commission from the agency's
decision dated November 30, 2005, dismissing his complaints 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. In his complaints, complainant alleged
that he was subjected to discrimination on the bases of race (Caucasian)
and reprisal for prior protected EEO activity when he was subjected to
harassment in complaint 1 in 2003 and in complaint 2 in 2005.
The record discloses that the agency sent complainant the notice
of right to file a formal complaint for complaint 1 on May 4, 2005.
The notice of right to file a formal complaint was sent for complaint 2
on June 30, 2005. In early July 2005, complainant informed the agency
that he would be on active duty with the military. On July 18, 2005,
complainant sent the agency a letter stating that he had been released
from active duty and asking the agency to advise him on how to pursue
his complaints of discrimination. The agency responded by letter
dated August 30, 2005. The agency clearly stated in its response that
complainant had fifteen (15) calendar days from the date of receipt of
this letter to file his formal complaints. The agency included copies
of the previously issued notices of right to file for both complaints.
Complainant did not file his formal complaints until October 6, 2005,
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. Accordingly, the agency's final decision
dismissing complainant's complaint is affirmed.1
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
April 20, 2007
__________________
Date
1 We note that the agency also dismissed the complaints for failure
to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1) and untimely
counselor contact pursuant to 29 C.F.R. � 1614.107(a)(2). Since the
Commission has affirmed the dismissal for failure to file the complaints
in a timely manner, we need not address the dismissal of the complaints
on any other grounds.
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0120071342
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120071342