0120092904
12-22-2009
Luis Faisca, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Luis Faisca,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120092904
Agency No. 200105092009101081
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision dated May 8, 2009, 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.
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2).
On December 24, 2008, complainant initiated contact with an EEO counselor
alleging that the agency discriminated against him. In a formal EEO
complaint dated January 30, 2009, complainant alleged that the agency
discriminated against him based on national origin (Hispanic) and reprisal
for prior protected EEO activity when, in November 2008, it failed to hire
him for a GS-6 agency Police Officer position and may have interfered with
his ability to gain employment as an officer other places he applied.
In its final agency decision, the agency dismissed complainant's
complaint pursuant to 29 C.F.R. � 1614.107(a)(2), due to untimely
filing of the formal complaint. The agency stated that it informed
complainant of the statutory 15-day deadline but complainant filed his
formal complaint on the 16th day. The agency provided a copy of a letter
dated January 9, 2009, accompanied by a Notice of Right to File (NORF),
in which the EEO Counselor informed complainant of his right to file a
formal complaint within 15 days of receipt of the notice. The agency
stated that complainant received the notice on January 14, 2009, and it
provided a copy of a domestic return receipt signed by "Esther B. Faisca"
and dated January 14. The agency indicated that complainant stated that
he misplaced the original documents. Further, the agency provided April
2009 correspondence in which it requested information about complainant's
delay for filing the formal complaint. Complainant responded that he
was unsure what happened but asked to proceed with his complaint.
The instant appeal from complainant followed. On appeal, complainant
stated that, for three years, he worked as a Police Officer at the
agency's Lake City, Florida medical center, until 2002, when the
agency attempted to terminate his employment. Complainant stated that,
following his filing of an EEO complaint, he and the agency entered into
a settlement agreement, but the agency breached the settlement agreement
multiple times. Complainant stated that he has been unsuccessful in
getting an officer position with the agency or other facilities despite
his qualifications and indications that he would be hired. He included
a copy of a settlement agreement dated January 8, 2008.
We find that complainant's complaint was properly dismissed pursuant
to 29 C.F.R. � 1614.107(a)(2). 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. All � 1614 time limits are in terms of calendar days unless
otherwise noted.
Where, as here, there is an issue of timeliness, "[a]n agency always bears
the burden of obtaining sufficient information to support a reasoned
determination as to timeliness." Guy, v. Department of Energy, EEOC
Request No. 05930703 (January 4, 1994) (quoting Williams v. Department of
Defense, EEOC Request No. 05920506 (August 25, 1992)). In addition, in
Ericson v. Department of the Army, EEOC Request No. 05920623 (January 14,
1993), the Commission stated that "the agency has the burden of providing
evidence and/or proof to support its final decisions." See also Gens
v. Department of Defense, EEOC Request No. 05910837 (January 31, 1992).
Such is the case here. The agency stated that complainant received
his NORF on January 14 and that he filed his formal complaint one day
beyond the 15-day statutory timeframe. We find that the agency provided
documentation to satisfy its burden and support its dismissal. Hence,
we AFFIRM the final agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
December 22, 2009
__________________
Date
2
0120092904
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120092904