01990647
04-26-2001
Frank M. Canizales, Complainant, v. Tommy G. Thompson, Secretary, Department of Health and Human Services, (Indian Health Service), Agency.
Frank M. Canizales v. Department of Health and Human Services
01990647
April 26, 2001
.
Frank M. Canizales,
Complainant,
v.
Tommy G. Thompson,
Secretary,
Department of Health and Human Services,
(Indian Health Service),
Agency.
Appeal No. 01990647
Agency No. IHS3197
DISMISSAL OF APPEAL
Complainant filed an appeal with this Commission from a final agency
decision (FAD) dated May 18, 1998, 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. In his
complaint, complainant alleged that he was subjected to discrimination
on the bases of race (Native American), sex (male), and reprisal for
prior protected activity<1> when:
he was denied attendance at a Headquarters West general staff meeting
on November 1, 1996;
he is required by IHS management to be escorted by a security guard each
time he attends meetings at Headquarters West;
he has been excluded for the Headquarters West building for over three
years because of an ongoing conflict with a Commissioned Corps Officer;
and
he is prohibited from attending meetings on the same floor as the Mental
Health Programs Branch, though he has in the past been permitted to
attend meeting on the third floor.
The agency dismissed complainant's claims pursuant to EEOC
Regulation 29 C.F.R. � 1614.107(a)(3), as the complaint is the basis
of a civil action in the U.S. District Court. Complainant filed an
appeal with this Commission on October 26, 1998. The agency contends
that the appeal is untimely and should be dismissed pursuant to 29
C.F.R. �1614.403(c).
Regulation 29 C.F.R. � 1614.402(b) provides that appeals to the Commission
must be filed within 30 calendar days after complainant's attorney
receives notice of the agency decision. Here, the record indicates that
the FAD was sent to the address of record for complainant's attorney
representative on May 18, 1998, and was signed for on May 23, 1998.
The FAD contained the notice of the right to appeal and the applicable
time limits for doing so. The agency has included a copy of the
certified mail return receipt. The agency states that complainant's
attorney never officially notified the agency of her change in address.
It is complainant's contention that neither he nor his attorney received a
copy of the FAD until it was faxed to them on October 1, 1998. He argues
that though his attorney may not have officially notified the agency of
the new address, a letter mailed to the Regional EEO Manager on November
12, 1997, had his attorney's new address printed in the letterhead, thus
giving the EEO Manager constructive notice of the change of address.
We do not agree.
The Commission has held that the complainant bears the burden of
notifying the agency of a change in address. See EEOC Regulation 29
C.F.R. � 1614.105(b).
In the instant case, complainant has provided no persuasive evidence
to support a finding that the agency erred in mailing the FAD to the
attorney's address of record. The Commission has held that a complainant
is deemed to have constructively received documents mailed to the last
known address when complainant, or his agent, has failed to notify
the agency of an address change. Here, simply having a new address
appear in a letterhead is not enough to put the agency on notice of
the change of address. Accordingly, we find that complainant failed to
rebut the presumption that he was in constructive receipt of the FAD on
the date indicated on the certified mail return receipt. Accordingly,
complainant's appeal is hereby DISMISSED. See 29 C.F.R. �� 1614.402
and 1614.604.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
April 26, 2001
__________________
Date
1The record indicates that complainant
participated in prior protected activity, but it is unclear under which
statute such activity occurred.