0120093612
12-18-2009
Tyrone Williams,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120093612
Agency No. 2003-0549-2009101404
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final decision dated July 22, 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.
In the instant complaint, filed on June 12, 2009, complainant alleged that
he was subjected to discrimination on the bases of race and sex when:
effective December 18, 2008, he was terminated from the position of
Pharmacy Technician during his probationary period.
In its July 22, 2009 final decision, the agency dismissed complainant's
complaint pursuant to 29 C.F.R. � 1614.107(a)(2), on the grounds that
it was untimely filed. The agency determined that complainant received
the Notice of Right to File a Discrimination Complaint (hereinafter
"Notice") on April 28, 2009 via Federal Express. The agency found that
complainant waited more than fifteen days to file the formal complaint.
The agency further noted that by letter dated June 29, 2009, the Acting
Regional EEO Officer requested that complainant provide a written
statement explaining the reason that he did not file the instant formal
complaint within the requisite 15-day limitation period. The agency noted
in his written statement dated July 9, 2009, complainant acknowledged the
instant formal complaint was untimely filed, but that he was unaware
that Federal Express delivered the Notice to his residence on April 28,
2009. Complainant stated that the Notice was received by a family member
who was visiting from out of town. Complainant stated that somehow the
Notice got mixed up with the family member's "things" and as a result,
complainant did not actually receive the Notice until June 11, 2009.
The agency stated that on June 12, 2009, complainant filed the instant
complaint which was well beyond the 15-day limitation period.
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 reflects that according to complainant, the final decision was
received at complainant's address of record on April 28, 2009. A review
of the Notice reveals that the agency properly advised complainant that
he had fifteen (15) calendar days from the date of the Notice to file a
timely formal complaint. Therefore, in order to be considered timely,
complainant had to file his complaint no later than May 13, 2009.
The Commission has held that receipt of a document at complainant's
correct address, i.e., address of record, by a member of the complainant's
family or household of suitable age and discretion creates a rebuttal
presumption of constructive receipt. See Fontanella v. General
Services Administration, EEOC Request No. 05940131 (April 10, 1995).
Complainant has not offered adequate justification, for an extension of
the applicable time limit for filing his complaint, and has not offered
any evidence to rebut the presumption of constructive receipt.
Accordingly, the agency's final decision dismissing complainant's
complaint on the grounds that it was untimely filed was proper and
is AFFIRMED.
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 18, 2009
__________________
Date
2
0120093612
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120093612