Orlando Jimenez, Complainant,v.Janet Napolitano, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity CommissionSep 17, 2009
0120092617 (E.E.O.C. Sep. 17, 2009)

0120092617

09-17-2009

Orlando Jimenez, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.


Orlando Jimenez,

Complainant,

v.

Janet Napolitano,

Secretary,

Department of Homeland Security,

Agency.

Appeal No. 0120092617

Agency No. HS09CBP003726

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated April 21, 2009, dismissing his complaint of unlawful

employment discrimination in violation of the Age Discrimination in

Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.

Upon review, the Commission finds that complainant's complaint was

properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), due to the

untimely filing of the formal complaint.

In his complaint, complainant alleged that he was subjected to

discrimination on the basis of age (43) when he learned he was not

selected for the position of Lead Border Agent, GS-1896-12.

The record discloses that complainant received the notice of right to file

a formal complaint on March 10, 2009. Although the notice indicated that

complainant had to file a formal complaint within fifteen (15) calendar

days of its receipt, complainant did not file his formal complaint

until March 30, 2009, which is beyond the limitation period. On appeal,

complainant has not offered adequate justification to warrant an extension

of the time limit for filing the complaint. Complainant reiterates his

reasons for the delay - work demands, and limited access to computers

and emails. However, complainant states that his assignment in the Virgin

Islands ended on March 22, 2009, but does not explain why he could not

have filed his complaint on March 24 or 25, 2009. Accordingly, the

agency's final decision dismissing complainant's complaint 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

September 17, 2009

__________________

Date

2

0120092617

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

3

0120092617