0120103574
02-24-2011
Adolfo Vazquez, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Adolfo Vazquez,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120103574
Agency No. 200P06642010102366
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated July 28, 2010, dismissing his complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. Upon review, the Commission finds that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2).
BACKGROUND
On January 3, 2010, Complainant began employment as an Addiction Therapist at a San Diego, California medical facility of the Agency. He was in his probationary status when, on March 19, 2010, the Agency terminated his employment. On March 25, 2010, Complainant initiated EEO contact alleging that the Agency subjected him to discrimination on the basis of disability (depression, hypertension, diabetes, psoriasis) when it removed him from Federal employment, citing "inability to timely complete assignments. . . . [and] fall[ing] asleep during group therapy sessions."
In a letter dated May 7, 2010 accompanied by a Notice of Right to File a Discrimination Complaint (NORF), an EEO Counselor informed Complainant of the right to file a formal complaint within 15 calendar days of receipt of the NORF. The NORF informed Complainant that he could file his complaint with either the Agency Secretary or a Deputy Assistant Secretary in the District of Columbia, or a Regional EEO Officer in Los Angeles, California. The NORF noted that filing with the Agency Secretary or Deputy Assistant Secretary necessitated a copy to the Regional EEO Officer. The Agency provided confirmation from a third party carrier that the NORF was delivered May 12, 2010.
Complainant filed a formal EEO complaint dated May 30, 2010 and postmarked July 7, 2010. Complainant contends that he filed his complaint with the Agency Secretary on May 18, 2010 prior to sending a copy to the Regional EEO Officer on July 7.
In its July 28 decision, the Agency dismissed Complainant's claim pursuant to 29 C.F.R. � 1614.107(a)(2), due to the untimely filing of the formal complaint. The Agency stated that Complainant received the NORF on May 12 and did not file formally until July 7, which is beyond the regulatory 15-day deadline. The Agency noted that Complainant failed to establish that he sent his complaint to the Agency Secretary and indicated the date of May 30 on his formal complaint which is three days beyond the statutory time limit. The instant appeal from Complainant followed, without substantive comment.
ANALYSIS AND FINDINGS
The record discloses that Complainant received the NORF on May 12, 2010. Although the NORF 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 July 7, 2010, which is beyond the limitation period. Further, even if we considered May 30 the date Complainant sent in his complaint, as evidenced by his signature of that date, it would still be untimely filed. On appeal, Complainant has not offered adequate justification to warrant an extension of the time limit for filing the complaint. Accordingly, we AFFIRM the Agency's final decision dismissing Complainant's complaint.
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
___February 24, 2011______
Date
2
0120103574
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120103574