01A33143_r
08-07-2003
Craig Ambrose, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Craig Ambrose v. Department of Justice
01A33143
August 7, 2003
.
Craig Ambrose,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A33143
Agency No. P-2002-0111
Hearing No. 150-A3-8074X
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final action dated April 3, 2003, 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. and Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq.
In his complaint, complainant alleged that he was subjected to
discrimination on the bases of race (African-American) and disability when
in November 2001 because of a back injury, he had to return to work after
getting letters from the executive staff at the FCI Miami threatening
termination. In addition, complainant alleged that because of his back
injury, his supervisor discriminated against him, and further alleged
that his supervisors tried to intimidate him to drop his injury claim.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The agency thereafter filed a Motion to
Dismiss complainant's complaint, on December 30, 2002, claiming that
complainant's complaint was untimely filed. The agency stated that at
the conclusion of his EEO counseling, complainant was given a Notice of
Right to File a Discrimination Complaint, which he signed on January 17,
2002. The agency further stated that the notice indicated that complainant
had to file a formal complaint within 15 calendar days of its receipt,
but that the formal complaint was not filed until February 21, 2002,
which is beyond the limitation period.
The record reveals that complainant failed to respond to the agency's
Motion to Dismiss. On February 20, 2003, the agency filed a Motion
for Ruling on its Unopposed Motion to Dismiss. On March 4, 2003, the
Administrative Judge granted the agency's motion to dismiss and issued
a decision dismissing the complaint for untimely complaint filing.
Subsequently, the agency implemented the AJ's decision in a final action
dated April 3, 2003. It is this decision that is the subject of the
instant appeal.
Upon review, the Commission finds the AJ properly dismissed complainant's
complaint for untimely complaint filing. We find that complainant
received notice from the agency on January 17, 2002, indicating that
he had fifteen days from receipt of the notice in which to timely file a
formal complaint. Complainant's complaint, filed on February 21, 2002,
was beyond the applicable time period. Complainant has not provided
sufficient justification to effect an extension of the applicable time
limitations. Accordingly, the agency's final action was proper and
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
August 7, 2003
__________________
Date