Fidel S. Medina, Appellant,v.Lawrence H. Summers, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionSep 23, 1999
01984593 (E.E.O.C. Sep. 23, 1999)

01984593

09-23-1999

Fidel S. Medina, Appellant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.


Fidel S. Medina v. Department of the Treasury

01984593

September 23, 1999

Fidel S. Medina, )

Appellant, )

)

v. ) Appeal No. 01984593

) Agency No. TD 98-1179

Lawrence H. Summers, )

Secretary, )

Department of the Treasury, )

Agency. )

)

DECISION

Appellant filed an appeal with this Commission from a final decision of

the agency concerning his complaint of unlawful employment discrimination,

in violation of Title VII of the Civil Rights Act of 1964, as amended, 42

U.S.C. �2000e et seq., the Age Discrimination in Employment Act of 1967,

as amended, 29 U.S.C. �621 et seq. and the Rehabilitation Act of 1973, as

amended, 29 U.S.C. �791 et seq. The final agency decision was received

by appellant on May 12, 1998. The appeal was postmarked May 26, 1998.

Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)), and is

accepted in accordance with EEOC Order No. 960, as amended.

ISSUE PRESENTED

The issue on appeal is whether the agency properly dismissed appellant's

complaint as untimely and for failure to cooperate.

BACKGROUND

Appellant contacted an EEO counselor on January 13, 1998, regarding

allegations of discrimination. Specifically, appellant alleged that he

was discriminated against when (1) on January 21, 1997 his co-worker

stated in a hostile tone, "You better retire"; (2) his co-worker made

unfavorable comments to appellant's supervisor about appellant's job

performance; and (3) his job description should be modified to reflect

his work in graphic arts. Informal efforts to resolve appellant's

concerns were unsuccessful. Accordingly, on March 9, 1998, appellant

filed a formal complaint alleging that he was the victim of unlawful

employment discrimination on the bases of race (Asian), color (brown),

religion (Roman Catholic), sex (male), national origin (Filipino), age

(10-28-25), and physical disability (arthritis).

On May 7, 1998, the agency issued a final decision (FAD) dismissing

allegation (1) of appellant's complaint as untimely, and allegations (2)

and (3) for failure to cooperate. Specifically, the agency determined

that appellant's EEO contact concerning allegation (1) was beyond the

time limitation established by EEOC Regulations. The FAD also found

that appellant failed to respond to the agency's request for additional

information regarding allegations (2) and (3).

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of

discrimination should be brought to the attention of the EEO Counselor

within forty-five (45) days of the date of the matter alleged to be

discriminatory or, in the case of a personnel action, within forty-five

(45) days of the effective date of the action. The Commission has

adopted a "reasonable suspicion" standard (as opposed to a "supportive

facts" standard) to determine when the forty-five (45) day limitation

period is triggered. See Ball v. USPS, EEOC Request No. 05880247

(July 6, 1988). Thus, the limitations period is not triggered until a

complainant reasonably suspects discrimination, but before all the facts

that support a charge of discrimination have become apparent.

EEOC Regulations provide that the agency or the Commission shall extend

the time limits when the individual shows that he was not notified of the

time limits and was not otherwise aware of them, that he did not know

and reasonably should not have known that the discriminatory matter or

personnel action occurred, that despite due diligence he was prevented

by circumstances beyond his control from contacting the Counselor within

the time limits, or for other reasons considered sufficient by the agency

or the Commission.

Based on our review of the record and previous Commission's decisions

on the issue, we hold that appellant's January 13, 1998 EEO contact

concerning allegation (1) was untimely. The Commission has held

that where there is an issue of timeliness, the agency always bears

the burden of obtaining sufficient information to support a reasoned

determination as to timeliness. Williams v. Department of Defense,

EEOC Request No. 05920506 (August 25, 1992). We find that appellant's

contention that he did not know where to file his complaint and that he

thought his "hurt feelings" about the issues would subside over time,

is insufficient to justify an extension of the applicable time limit for

almost a year. See Baldwin County Welcome Center v. Brown, 466 U.S. 147,

151 (1984) (per curiam) ("One who fails to act diligently cannot invoke

equitable principles to excuse lack of diligence"); Rys v. U.S. Postal

Service, 886 F.2d 443, 446 (1st Cir. 1989) ("to find succor in equity

a Title VII plaintiff must have diligently pursued her claim").

Accordingly, the agency has met its burden concerning the issue of

untimeliness. We find, therefore, that the agency's decision dismissing

allegation (1) was proper.

EEOC Regulation 29 C.F.R. �1614.107(g) provides for the dismissal of a

complaint where the agency has provided the complainant with a written

request to provide relevant information or otherwise proceed with the

complaint, and the complainant has failed to respond to the request with

15 days of its receipt or the complainant's response does not address

the agency's request, provided that the request included a notice of the

proposed dismissal. The regulation further provides that, instead of

dismissing for failure to cooperate, the complaint may be adjudicated

if sufficient information for that purpose is available.

The Commission has previously held that only where the complainant has

engaged in delaying or contumacious conduct and the record is insufficient

to permit adjudication will the Commission allow a complaint to be

dismissed for failure to prosecute. See Card v. United States Postal

Service, EEOC Request No. 05970095 (April 23, 1998); Kroeten v. United

States Postal Service, EEOC Request No. 05940451 (December 22, 1994).

The record reflects that by letter dated April 2, 1998, the agency

specifically requested that appellant provide the dates and other

relevant information for the matters raised in allegations (2) and

(3) of appellant's formal complaint. The letter explicitly indicated

that appellant's failure to respond would result in the dismissal of

the complaint. The record contains a copy of a letter from appellant

dated April 15, 1998 in response to the agency's request for additional

information regarding allegations (2) and (3). However, upon review we

find that appellant's April 15, 1998 correspondence fails to respond

specifically to the agency's request for specific dates on which

appellant alleges he was discriminated against and other relevant

information concerning the alleged discrimination. Appellant's letter

fails to identify specific incidents of alleged discrimination to support

allegations (2) and (3) of his complaint. We find that appellant has not

provided the agency with sufficient evidence to initiate an investigation

of allegations (2) and (3).

CONCLUSION

Accordingly, we find that the agency's decision dismissing allegation (1)

for untimely counselor contact and allegations (2) and (3) for failure

to cooperate was proper. The agency's decision is hereby AFFIRMED for

the reasons set forth herein.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. In the alternative, you may file a

civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. Filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1092)

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:

September 23, 1999

__________________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations