01a54242
11-07-2005
Ben John Santos, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Ben John Santos v. Department of the Navy
01A54242
November 7, 2005
.
Ben John Santos,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A54242
Agency No. 05-62204-004
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated May 5, 2005, dismissing his formal 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.
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
On September 30, 2004, complainant initiated contact with the agency
EEO office claiming that he was discriminated on the bases of race,
age, and in reprisal for prior EEO activity. Informal efforts to
resolve complainant's concerns were unsuccessful. On January 31, 2005,
complainant filed the instant formal complaint.
On May 5, 2005, the agency issued the instant final decision. The agency
dismissed the formal complaint pursuant to 29 C.F.R. �1614.107(a)(2),
on the grounds that it was untimely filed. Specifically, the agency
stated that the Notice of Right to File a Formal Complaint, informing
complainant that he had fifteen days from the date of its receipt in
which to file a timely complaint, was received and signed by complainant
on January 10, 2005, but that the formal complaint was filed on January
31, 2005, six days beyond the limitation.
On appeal, complainant contends that the death of his nephew prevented
him from filing a timely complaint. In support of this assertion,
complainant submitted a �certification of vital record� to prove that
his nephew died on January 20, 2005, five days before the expiration
day to file his complaint.
EEOC Regulation 29 C.F.R. � 1614.106(b) requires the filing of a written
complaint with an appropriate agency official within fifteen (15) calendar
days after the date of receipt of the notice of the right to file a formal
complaint. EEOC Regulation 29 C.F.R. � 1614.107(a)(2) provides that the
agency shall dismiss a complaint that fails to comply with the applicable
time limits contained in �� 1614.105, 1614.106, and 1614.204(c), unless
the agency extends the time limits in accordance with � 1614.604(c).
The record indicates that complainant received the Notice of Right
to File a Formal Complaint on January 10, 2005. The notice informed
complainant that he had fifteen days (15) days from the date of receipt
of the notice in which to file a complaint. This notice was included
with the notice of final interview. Thus, complainant's receipt of the
right to file was proper and he was on proper notice of the impeding
deadline for filing a formal complaint of discrimination.
The record further reflect that complainant did not file a formal
complaint within fifteen (15) days of ths notice, but instead filed the
formal complaint on January 31, 2005. While the Commission is not
unsympathetic to the incident which ensued subsequent to complainant's
receipt of the notice to file a formal complaint, we nevertheless
determines that complainant has not presented adequate justification,
pursuant to 29 C.F.R. �1614.604(c) for extending the filing period.
Accordingly, the agency's decision to dismiss the formal complaint on
the grounds that it was untimely filed was proper and is AFFIRMED.
Because we affirm the agency's dismissal for the reason stated herein,
we find it unnecessary to address alternative dismissal grounds.
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
November 7, 2005
__________________
Date