0120091584
08-26-2011
Gary A. Escudero, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services (Indian Health Service), Agency.
Gary A. Escudero,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services
(Indian Health Service),
Agency.
Appeal No. 0120091584
Agency No. HHS-HIS-1359-2008
DISMISSAL OF APPEAL
By Notice of Appeal date stamped as received by the Commission on March
5, 2009, Complainant filed an appeal with this Commission from the final
Agency decision (FAD) concerning his EEO 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.
In his Notice of Appeal, Complainant acknowledged that he received the FAD
on January 23, 2009. A review of the FAD reveals that the Agency properly
advised Complainant that he had thirty (30) calendar days after receipt
of its final decision to file his appeal with the Commission. Therefore,
in order to be considered timely, Complainant had to file his appeal no
later than February 23, 2009.1 Complainant’s Notice of Appeal carried
an illegible postmark, but was date stamped as received by the Commission
on March 5, 2009. In the absence of a legible postmark, a document
shall be deemed timely if it is received by mail within five days of the
expiration of the applicable filing period. 29 C.F.R. § 1614.604(b).
Thus, Complainant needed to file his appeal on or before March 2,
2009.2 Complainant has not offered a justification for an extension
of the applicable time limit for filing his appeal. Accordingly,
Complainant's appeal is hereby dismissed. See 29 C.F.R. § 1614.403(c).
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
___8/26/11_______________
Date
1 Because the thirtieth day fell on a Sunday, February 22, 2009, the
filing period was extended to include the next business day, Monday,
February 23, 2009. See 29 C.F.R. § 1614.604(d).
2 Because the fifth day fell on a Saturday, February 28, 2009, the
time period was extended to include the next business day, Monday,
March 2, 2009. See 29 C.F.R. § 1614.604(d).
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0120091584
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120091584