01A10175
03-27-2001
Ruben Sandoval, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Ruben Sandoval v. Department of the Treasury
01A10175
March 27, 2001
.
Ruben Sandoval,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A10175
Agency No. 00-4068-R
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2)), due to the
untimely filing of the formal complaint.
On November 30, 1999, complainant filed an EEO complaint alleging that
he was discriminated against based on national origin and in reprisal
for prior EEO activity when he was issued a thirty day suspension
on August 8, 1999. The agency issued a final agency decision (FAD)
dismissing the complaint on the grounds that it was untimely filed.
Complainant appealed the FAD to the Equal Employment Opportunity
Commission. (EEOC Docket No. 01A01965). Complainant alleged that the
agency misinformed him regarding the proper method to file his mixed
case complaint. He alleged that when he initially filed the informal
EEO complaint he advised the EEO counselor of his desire to file a mixed
MSPB/EEO complaint and the counselor misinformed and misdirected him.
The Commission vacated the FAD and remanded the complaint to the agency
with the order to supplement the record with a statement from the
EEO counselor regarding his instructions for filing a formal complaint,
specifically, whether he had indicated to complainant that he would file
a formal complaint on complainant's behalf and for filing a mixed case
complaint. The Commission also ordered the agency to obtain a statement
from complainant regarding the EEO counselor's instructions for filing
a formal complaint, specifically, indicating what actions or statements
by the counselor lead complainant to believe that the counselor would
file a formal complaint on complainant's behalf.
The agency complied with the Commission's order by supplementing the
record with statements from the EEO counselor and complainant and
issued a FAD dated August 28, 2000, again dismissing the complaint
pursuant to 29 C.F.R. � 1614. 107 (a)(2) and (4). Complainant timely
filed this appeal to the Commission alleging that the agency failed to
comply with the Commission's order and requested to sanction the agency
for its noncompliance.
After a review of the record the Commission finds that the agency
complied with the Commission's order. The Commission further finds that
complainant received the notice of right to file a formal complaint
on October 4, 1999. Although the notice indicated that complainant
had to file a formal complaint within fifteen (15) calendar days of its
receipt, complainant did not file his formal complaint until November 30,
1999, which is beyond the limitation period. On appeal, no persuasive
arguments or evidence have been presented to warrant an extension of the
time limit for filing the complaint. Accordingly, the agency's final
decision dismissing complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 27, 2001
_________________
Date