0120123202
02-05-2013
Vivekram P. Bellur, Complainant, v. Dr. Rebecca Blank, Acting Secretary, Department of Commerce (Patent and Trademark Office), Agency.
Vivekram P. Bellur,
Complainant,
v.
Dr. Rebecca Blank,
Acting Secretary,
Department of Commerce
(Patent and Trademark Office),
Agency.
Appeal No. 0120123202
Agency No. 125637
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision1 dated July 10, 2012, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Patent Examiner at the Agency's Patent and Trademark Office in Alexandria, Virginia.
On June 23, 2012, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Asian), national origin (Indian), religion (Hindu), color, and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when, since his hiring, he has been subject to a hostile environment by his supervisors, including, but not limited to: being unfairly forced to submit office actions multiple times and being given poor advice, and as a result being denied promotions and/or bonuses; between June and December 2011, and again around June 12, 2012, he was unfairly accused of working voluntary overtime by his supervisor; and on an on-going basis, his supervisor made comments about Asians and people with non-English accents.
The Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(2), due to the untimely filing of the formal complaint. The instant appeal followed. In his appeal, Complainant does not dispute that his complaint was filed late, Rather, he argues that there were extenuating circumstances that should excuse the missed deadline because he was on leave dealing with family issues. Complainant states he sought long term FMLA to deal with family matters, and he had to "quickly deal with loose ends at work and personally plan for leave and pack up for leave which consumed time all the way to June 8, 2012." Complainant asserts these issues in obtaining FMLA caused, "difficulties in submitting the formal complaint on time."
ANALYSIS AND FINDINGS
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 the notice of the right to do so.
The record discloses that Complainant received the notice of right to file a formal complaint on June 7, 2012. Although the notice 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 June 23, 2012, which is beyond the limitation period. On appeal, Complainant references his need to arrange for leave to attend to family issues. However, nothing in the statements provided by Complainant supports a finding that he was so incapacitated throughout the applicable period as to prevent him from timely filing his EEO complaint. Complainant has therefore failed to present adequate justification, pursuant to 29 C.F.R. � 1614.604(c), for extending the filing period.
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
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 5, 2013
__________________
Date
1 In its decision, the Agency provided Complainant with an out-dated address for the Commission. The Agency is reminded to provide the correct address in all of its materials.
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0120123202
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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