01A20656_r
04-08-2002
Carlos O. Rodriguez, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Carlos O. Rodriguez v. Department of Justice
01A20656
April 8, 2002
.
Carlos O. Rodriguez,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A20656
Agency No. M01-0036
DECISION
Upon review, the Commission finds that the agency properly dismissed
complainant's employment discrimination complaint pursuant to 29 C.F.R. �
1614.107(a)(2), for untimely EEO Counselor contact. In his complaint,
complainant alleged discrimination on the bases of national origin
(Hispanic), disability (neck injury, shoulder injury, severe depression,
and post traumatic stress disorder), and age when he was subjected to
harassment from 1993 through 1997.
The record discloses that the harassment ceased in 1997 when complainant's
supervisor left the agency, but complainant did not initiate contact with
an EEO Counselor until January 18, 2001, which is beyond the forty-five
(45) day limitation period. In its final decision, the agency found that
complainant was capable of contacting an EEO Counselor, especially since
he was able to file a claim with the Office of Workers' Compensation
Program (OWCP) in 1995, seek the Employee Assistance Program in 1998 to
discuss the trauma he suffered under the supervisor, and enroll in further
psychiatric care in October 2000 to address the harassment he suffered
at the hands of the supervisor. On appeal, complainant argues that he
was incapacitated during the intervening time period, and did not realize
he should contact an EEO Counselor until he spoke with an attorney.
We have consistently held, in cases involving physical or mental health
difficulties, that an extension is warranted only where an individual
is so incapacitated by his condition that he is unable to meet the
regulatory time limits. See Crear v. United States Postal Service,
EEOC Request No. 05920700 (October 29, 1992). Complainant was capable
of working until August 6, 1998, more than forty-five days after the
last incident, but still failed to contact an EEO Counselor during
that time period. Although complainant presents evidence of incapacity
to file when he sought treatment in October 2000, he has not provided
evidence of incapacity prior to that date. Therefore, complainant has
not provided persuasive arguments or evidence to warrant an extension
of the time limit for initiating EEO Counselor contact. Accordingly,
the agency's final decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 8, 2002
__________________
Date