01994449
11-30-2000
Domingo Cintron Jr., Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Domingo Cintron Jr. v. Department of Veterans Affairs
01994449
November 30, 2000
.
Domingo Cintron Jr.,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01994449
Agency No. 99-1087
DECISION
Complainant filed a timely appeal with this Commission from an
agency's April 6, 1999 dismissal of 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., Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. On his check-the-box formal complaint
form, complainant alleged that he was subjected to discrimination on the
bases of race, color, religion, sex (male), national origin (Hispanic),
age (over forty), disability, and reprisal for prior EEO (and union)
activity by the following:
Admonishment;
Assignment of Duties;
Award;
Duty Hours;
Harassment;
Performance;
Sexual Harassment;
Time and Attendance;
Training;
Working Conditions; and
Other - Dating of employees by work leaders and supervisors.
By letter dated March 5, 1999, the agency requested that complainant
clarify the issues raised in his formal complaint, provide dates for
the incidents, and explain why he waited more than forty-five days to
contact an EEO Counselor. The letter also informed complainant that
his failure to provide the requested information within fifteen days
could result in dismissal of his complaint. In response, complainant
provided handwritten notes detailing verbal arguments with coworkers
and supervisors. Complainant also presented evidence of his injuries
and job limitations.
In its dismissal, the agency found that complainant's submissions did
not respond to their inquiries. Therefore, the agency dismissed the
entire complaint for failure to cooperate. The agency also dismissed
the complaint for failure to file a timely formal complaint, and failure
to state a claim. With regard to timeliness, the agency noted that
complainant received his notice-of- right-to-file-a-formal-complaint
(notice) on June 22, 1998, but did not file his formal complaint
until November 1998. The agency noted that complainant returned to
an EEO Counselor on September 9, 1998, and discussed his failure
to file the complaint in a timely manner. The agency found that
complainant acknowledged his untimeliness in this counseling session,
and then submitted an incomplete complaint form dated August 3, 1998.
The agency also dismissed any claims involving complainant's injury,
restricted duty, or request for a splint from the pharmacy for failure
to raise the matters with an EEO Counselor.
The record includes a copy of two Counselor's Reports. The first
report, from complainant's June 23, 1998 contact, outlines complainant's
receipt of written counseling for using the telephone improperly and
going �AWOL,� being yelled at by a coworker on June 21, 1998, lack of
training in all �areas of the line� unlike young female employees who
dress provocatively, receipt of a derogatory performance appraisal,
lack of overtime, and increased work load because coworkers take the
day off after working overtime. At the conclusion of this counseling,
complainant received a notice dated July 23, 1998.
The second Counselor's Report, concerning a September 9, 1998 counselor
contact, involved whether complainant could still file a formal complaint
for the issues raised in the earlier counseling session. According to
the report, complainant �emphatically� stated that he had no new claims
to raise, but wished to file his formal complaint concerning the matters
previously counseled. He informed the counselor that his sole reason for
the September contact was to discuss his reasons for failing to timely
file his complaint. Complainant stated that he did not file his complaint
within fifteen days of receiving the July 23, 1998 notice because he
was waiting for additional paperwork from the first EEO Counselor.
Complainant presented an incomplete copy of his formal complaint form
dated August 3, 1998. The EEO Counselor instructed complainant to
file his formal complaint, but to explain why he failed to do so within
fifteen days of receiving the first notice of right to file a complaint.
The report notes that complainant spoke with the Counselor on September
16, 1998, and September 30, 1998, to discuss his difficulties completing
the complaint form. The Counselor then issued complainant a new notice,
signed as received by complainant on October 21, 1998.
In his formal complaint, complainant explained that he mailed his
complaint on August 3, 1998. He further stated that he tried �in vain� to
rectify his concerns with his supervisors, but received no assistance from
anyone in the facility. Complainant also argued that he was not aware of
the fifteen-day time limit, and was untimely due to a misunderstanding
of the time frames. The agency's letter of acknowledgment indicates
that complainant filed his formal complaint on November 5, 1998.
EEOC Regulations require complainant to file his formal complaint
within fifteen days of receiving notice of the right to do so. See 29
C.F.R. � 1614.106. Complaints that fail to comply with this time limit
shall be dismissed. See 29 C.F.R. � 1614.107(a)(2).
In his second counseling session, complainant admits that he failed to
file his formal complaint within fifteen days of receiving his notice.
He provides an excuse for his untimeliness. In his subsequent formal
complaint, complainant provides three different, sometimes contradictory
reasons for his untimeliness. Given his inconsistencies, the Commission
finds that his explanations are not credible. Complainant failed
to comply with the fifteen day filing limitation, or to provide a
persuasive reason to justify his delay. Further, complainant cannot
revive an untimely complaint by contacting another counselor concerning
the same matters. Therefore, the agency's dismissal of the complaint
for untimeliness was proper.<1>
CONCLUSION
The agency's dismissal is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
November 30, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1Since we are affirming the agency's dismissal for untimeliness, we
will not address the agency's alternative grounds for dismissal, i.e.,
failure to cooperate, failure to state a claim, and failure to raise
the matters with an EEO Counselor.