01a02036
05-12-2000
Jerry Rodriguez, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Jerry Rodriguez v. Department of the Navy
01A02036
May 12, 2000
Jerry Rodriguez, )
Complainant, )
)
v. ) Appeal No. 01A02036
) Agency No. 2000-00389-001
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
____________________________________)
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 64 Fed. Reg. 37,644, 37,656 (1999)(to
be codified and hereinafter referred to as EEOC Regulation 29 C.F.R. �
1614.107(a)(2)), due to the untimely filing of the formal complaint.<1>
The record indicates that, by letter dated October 13, 1999, the agency
provided complainant a Notice of Final Interview containing a right to
file a formal complaint. Although the notice indicated that complainant
had a right to file a formal complaint within fifteen calendar days of its
receipt, complainant did not file his formal complaint until November 2,
1999, beyond the limitation period..
On appeal, complainant states that his final interview was on October
13, 1999, and that he "only had 15 days to submit a formal complaint."
Complainant asserts that during that month he became very ill, and that
he was "unable to submit in time" due to the state of his illness, which
he described as severe stomach pain and depression. Complainant also
submits several statements from physicians describing his condition.
EEOC Regulation 29 C.F.R. �1614.106(b) requires that complainants file
their formal complaints of discrimination within 15 days of their receipt
of a notice of the right to file a discrimination complaint. This
time limit is subject to waiver, estoppel, or equitable tolling.
29 C.F.R. �1614.604(c). Pursuant to 29 C.F.R. �1614.107(a)(2), an agency
shall dismiss a complaint which was not filed within the fifteen-day
time period.
In the present case, the Commission finds that complainant failed
to submit adequate justification for extending the time for filing
beyond the regulatory period. The Commission has 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 Davis v. United States Postal Service, EEOC Request No. 05980475
(August 6, 1998); Crear v. United States Postal Service, EEOC Request
No. 05920700 (October 29, 1992); Weinberger v. Department of the Army,
EEOC Request No. 05920040 (February 21, 1992); Hickman v. Department
of the Navy, EEOC Request No. 05910707 (September 30, 1991); Johnson
v. Department of Health and Human Services, EEOC Request No. 05900873
(October 5, 1990); and Zelmer v. United States Postal Service, EEOC
Request No. 05890164 (March 8, 1989). Because the evidence does not
support that complainant was so incapacitated as to have been unable to
pursue his EEO complaint in a more timely manner, we find no basis for
tolling the time limit for filing his complaint.
Accordingly, the agency's final decision dismissing appellant's complaint
is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
May 12, 2000
________________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date
1On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at www.eeoc.gov.