01976032
01-07-1999
Modesto C. Rios, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Commissary Agency),) Agency.
Modesto C. Rios v. Department of Defense
01976032
January 7, 1999
Modesto C. Rios, )
Appellant, )
)
v. ) Appeal No. 01976032
) Agency No. 97SW48063
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Commissary Agency),)
Agency. )
______________________________)
DECISION
Based on a review of the record, we find that the agency properly
dismissed appellant's complaint, pursuant to EEOC Regulation 29
U.S.C. �1614.107(b), for failure to file a formal complaint in a timely
manner. Appellant alleged that he was subjected to discrimination on
the bases of race (Hispanic), color (Brown), national origin (Mexico),
age (67), and physical disability (injured back, neck, and head) when:
The agency failed to provide appellant the necessary forms and assistance
for his Office of Workers' Compensation Programs (OWCP) claim resulting
from an August 27, 1994 injury he sustained;
The agency subjected appellant to behavior designed to taunt, ridicule
and belittle him; and
On April 24, 1997, appellant was threatened with disciplinary action
and verbally attacked by his supervisors.
On July 3, 1997, the agency issued a final decision dismissing appellant's
complaint pursuant to 29 U.S.C. �1614.107(b), for failure to file a
formal complaint in a timely manner.
EEOC Regulation 29 U.S.C. �1614.107(b) provides that an agency shall
dismiss a complaint, or portion thereof, that fails to comply with
the time limits contained in 29 U.S.C. �1614.106. This regulation,
in turn, provides that a complaint must be filed within fifteen (15)
days of receipt of the notice of right to file a formal complaint.
In the instant complaint, the record discloses that appellant's attorney
of record acknowledged receipt of the notice of right to file a formal
complaint on April 22, 1997, but did not file the formal complaint
until May 11, 1997, beyond the fifteen (15) day limitation period.
As appellant provided no justification sufficient to extend the applicable
time period, we find that the agency's decision to dismiss appellant's
complaint pursuant to 29 U.S.C. �1614.107(b), was proper. Accordingly,
the agency's final decision dismissing appellant's complaint is AFFIRMED.
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:
Jan. 7, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations