0520120297
08-30-2012
Edgar D. Furtado, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.
Edgar D. Furtado,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Request No. 0520120297
Appeal No. 0120112519
Agency No. HS-05-2544 and HS-07-2073
DENIAL
Complainant timely requested reconsideration of the decision in Edgar D. Furtado v. Department of Homeland Security, EEOC Appeal No. 0120112519 (February 3, 2012). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
Complainant filed an appeal on April 15, 2011 from the Agency's July 25 and 31, 2008, final decisions. By way of explanation for his untimely filing, Complainant maintained that his former attorney failed to advise him of the final decisions. He also attributed the delay to his wife's life-threatening illness and the affect it had on his mental health. The previous decision dismissed the appeal on the grounds that it was untimely filed. The decision noted three factors in reaching its determination. These factors were: (1) a complainant is at all times responsible for the processing of his complaint regardless of whether he is represented by an attorney; (2) there was nothing in the record which indicated that Complainant was so incapacitated during the applicable filing period that he was prevented from filing a timely appeal; and (3) after the issuance of the final agency decision, Complainant, through his attorney, filed a civil action in the United States District Court for the District of Massachusetts.
In his request for reconsideration, Complainant argues, in large part, that he was too incapacitated to meet the filing deadlines. He maintained that prior to his resignation in 2007, he was "severely traumatized, physically assaulted," and feared for his safety. Complainant stated that he now suffers from Post Traumatic Stress Disorder, which he maintains contributed to his delay in filing an appeal. Complainant also submitted a great deal of medical documents regarding both his and his wife's medical conditions.
We must remind Complainant that a "request for reconsideration is not a second appeal to the Commission." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (rev. Nov. 9, 1999), at 9-17. A reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency. Here, we find no evidence that Complainant has met the criteria for reconsideration. Although we are sympathetic to Complainant's plight, the fact remains that he has not shown that the findings of the previous decision were clearly erroneous. In this regard, we note that the documents that he submits in his request were not part of the appellate record. Thus, the previous decision was not in error when it concluded that "there was nothing in the record which indicated that Complainant was so incapacitated during the applicable filing period that he was prevented from filing a timely appeal." More important is the fact that Complainant, through his attorney, was engaged in civil litigation against the Agency from 20081 through October 28, 2010, when the United States Court of Appeal for the First Circuit denied his appeal from the District Court's dismissal of his civil action. This would indicate that Complainant was not so incapacitated by a physical or mental condition that he was unable to meet the regulatory time limitation period or that he could not have filed an appeal earlier than April 2011.
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0120112519 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.
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
__8/30/12________________
Date
1 It appears the civil action was filed about four months before the final agency decisions were issued.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0520120297
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120297