Roberto L. Villalva, Complainant,v.Michael Chertoff, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity CommissionJan 8, 2009
0120084002 (E.E.O.C. Jan. 8, 2009)

0120084002

01-08-2009

Roberto L. Villalva, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.


Roberto L. Villalva,

Complainant,

v.

Michael Chertoff,

Secretary,

Department of Homeland Security,

Agency.

Appeal No. 0120084002

Agency No. HS-08CBP-006539-370513

DECISION

Complainant filed a timely appeal with this Commission from the final

agency decision dated September 8, 2008, dismissing his formal complaint

of unlawful employment discrimination in violation of Section 501 of the

Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �

791 et seq. Upon review, the Commission finds that complainant's

complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)

(2), for untimely EEO Counselor contact.

On June 18, 2008, complainant initiated EEO Counselor contact.

Informal efforts to resolve his concerns were unsuccessful.

On August 5, 2008, complainant filed the instant formal complaint.

Therein, complainant claimed that he was subjected to discrimination on

the basis of disability when on May 18, 2007, he was terminated during

his probationary period from his employment as a Customs and Border

Protection Officer CBPO, GS-1896-7 assigned to the Rio Grande Valley

sector in Edinburg, Texas, because he did not clear the background

investigation.

The record discloses that the alleged discriminatory event occurred

on May 18, 2007, but that complainant did not initiate contact with an

EEO Counselor until June 18, 2008, which is beyond the forty-five (45)

day limitation period. The record further indicates that by letter dated

October 19, 2007, the Deputy Director of Labor and Employee Relations

for the Customs and Border Protection informed complainant that his

employment was terminated because he had not cleared the background

investigation required for the CBPO position.

On appeal, complainant has presented no persuasive arguments or evidence

warranting an extension of the time limit for initiating EEO Counselor

contact.

Accordingly, the agency's final decision dismissing complainant's

complaint on the grounds of untimely EEO Counselor contact is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0408)

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 (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 (Z0408)

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

January 8, 2009

__________________

Date

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0120084002

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120084002

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