Jerry Rodriguez, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionMay 12, 2000
01a02036 (E.E.O.C. May. 12, 2000)

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.