01A41539_r
07-14-2004
Freddie G. Espiritu, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Commissary Agency), Agency.
Freddie G. Espiritu v. Department of Defense (Defense Commissary Agency)
01A41539
July 14, 2004
.
Freddie G. Espiritu,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Commissary Agency),
Agency.
Appeal No. 01A41539
Agency No. DECWP20030081
DECISION
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 complaint, complainant
alleged that he was subjected to discrimination on the bases of race
(Asian), national origin (Philipino), and reprisal when he was denied
a promotion and transferred to the Imperial Beach Commissary.
The record shows that the notice of right to file a complaint was
delivered and accepted by someone at complainant's address on September
10, 2003. Also, the agency sent complainant's attorney a carbon copy
of the notice of right to file a complaint. The record contains an
electronic mail sent to the agency from Federal Express indicating
that complainant's attorney received an unidentified package from
the agency on September 10, 2003. On October 14, 2003, complainant
filed his complaint. In his complaint, complainant asserts that the
agency knew he would be in the Philippines and unable to accept service.
Complainant states that someone signed for the notice of right to file
a complaint on September 10, 2003, however, he did not receive it until
his return from the Philippines on October 1, 2003. Complainant contends
that since the agency was on notice that he was in the Philippines until
October 1, 2003, his formal complaint is timely.
In its final decision, the agency states that complainant was advised
that the notice of right to file a complaint would be sent to him and
his representative despite the fact that he was contemplating going
to the Philippines. The agency also states that on August 19, 2003,
complainant's attorney was contacted and advised that the notice of right
to file a complaint would be sent to her attention and that the evidence
in the record indicates that she received it on September 10, 2003.
The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in
pertinent part, that an agency shall dismiss a complaint which fails to
comply with the applicable time limits contained in 29 C.F.R. � 1614.106,
which, in turn, requires the filing of a formal complaint within fifteen
(15) days of receiving notice of the right to do so. Additionally,
29 C.F.R. � 1614.605 (d) provides that when a complainant designates
an attorney representative, service of documents and decisions on the
complainant shall be made on the attorney and not on the complainant,
and time frames for receipt of materials by the complainant shall be
computed from the time of receipt by the attorney. If a complainant or
the complainant's representative does not file within the designated time
limit, the complaint is untimely and will be dismissed by the Commission
unless the principles of waiver, estoppel or equitable tolling apply.
In the instant case, we find complainant's justification for his
untimeliness inadequate. Although complainant was in the Philippines,
his attorney was designated to act on his behalf. Complainant's attorney
received the notice of right to file a formal complaint on September
10, 2003. Thus, the fifteen day time limit began when complainant' s
attorney received the notice of right to file a complaint. On appeal,
complainant's attorney does not dispute her receipt of the notice of
right to file, nor does she offer any 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.
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
July 14, 2004
__________________
Date