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