01990024_r
08-19-1999
Chong H. Kim, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Chong H. Kim, )
Appellant, )
) Appeal No. 01990024
v. ) Agency No. BGASFO9608G0660
)
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
DECISION
On September 29, 1998, appellant filed an appeal of an August 28, 1998
final agency decision which dismissed his complaint for failure to file
his complaint in a timely manner.<1>
In his September 30, 1996 complaint, appellant alleged that he was
discriminated against on the bases of race (Asian), national origin
(Korean), and in reprisal when he did not receive his graduation diploma
from the Defense Systems Management College in Fort Belvoir, Virginia.
In dismissing the complaint, the agency stated that appellant received a
Notice of Right to File a Discrimination Complaint on August 26, 1996,
that appellant received the Notice of Right to File on September 3,
1996 and that appellant's complaint was received by facsimile in the
agency on September 27, 1996, and therefore appellant's complaint was
untimely filed.
On appeal, appellant asserts that the EEO Complaints Manager informed
him that he could file his complaint on September 27, 1996, and, in so
doing, she misled him into filing his complaint late. In support of
his argument, appellant provided a declaration, prepared under penalty
of perjury, in which he states that he was informed that he could have
a final interview and file his complaint on September 27, 1996.
As an initial matter the Commission notes that the present complaint was
the subject of an October 4, 1996 final agency decision (FAD-1) which
dismissed appellant's complaint on the same grounds. Appellant appealed
FAD-1 to the Commission and the Commission remanded the complaint to
the agency. Kim v. Department of the Army, EEOC Appeal No. 01970874
(July 30, 1998). In its prior decision, the Commission noted that it
was unable to determine whether appellant timely filed the complaint and
ordered the agency to supplement the record with an affidavit from the
Complaints Manager addressing appellant's allegations that the Complaints
Manager orally extended the deadline for filing the complaint or misled
appellant as to when the complaint could be timely filed.
EEOC Regulation 29 C.F.R. �1614.106(b) requires the filing of a written
complaint with an appropriate agency official within 15 calendar days
after the date of receipt of the notice of the right to file a complaint
required by 29 C.F.R. �1614.105(d), (e) or (f). EEOC Regulation 29
C.F.R. �1614.107(b) provides that the agency shall dismiss a complaint
or a portion of a complaint that fails to comply with the applicable
time limits contained in ��1614.105, 1614.106, and 1614.204(c), unless
the agency extends the time limits in accordance with �1614.604(c).
Upon review, the Commission finds that the agency's dismissal of the
complaint was proper and appellant has not provided persuasive reasons
to extend the time limit. The record reveals, and appellant does not
dispute, that the Notice of Right to File was received at his address
of record on September 3, 1996. The Notice of Right to File informed
appellant that he had 15 days from its receipt to file a formal complaint.
Appellant also does not dispute that he did not file his complaint
until September 27, 1996. Accordingly, appellant's complaint was
untimely filed.
Although appellant asserts that he was misled into filing his complaint
late, the Commission is not persuaded by appellant's argument.
The Commission notes that it has previously held that an agency may
not dismiss a complaint based on an appellant's untimeliness, if
that untimeliness is caused by the agency's action in misleading or
misinforming the appellant. See Wilkinson v. United States Postal
Service, EEOC Request No. 05950205 (March 25, 1996). However, in
the case at hand, we do not find that the agency misled appellant.
The record contains the August 27, 1998 affidavit of the then EEO
Complaints Manager. Therein, she states that she never extended the
filing deadline or misled appellant as to when the formal complaint could
be filed. The affidavit also reflects that on September 19, 1996, the
EEO Complaints Manager spoke with appellant by telephone and informed him
that he needed to comply with the 15-day time requirement and that the
EEO informal process was already completed. The affidavit also reveals
that the EEO Complaints Manager never advised appellant nor indicated to
him in any way that he could timely file his complaint on September 27,
1996, or that he could participate in a final interview on that date.
The record also contains a Memorandum for the Record which contains notes
of the telephone conversations that the EEO Complaints Manager had with
appellant on September 19, 1996 and September 27, 1996. The Memorandum
reveals that the EEO Complaints Manager informed appellant that he
could not have a final interview with his EEO Counselor because the
process was completed and that she also told him that he needed to file
his complaint within 15 days of receipt of his Notice of Right to File.
The Memorandum also reveals that the EEO Complaints Manager did not meet
with appellant on September 27, 1996.
Consistent with the foregoing discussion, the agency's final decision
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:
August 19, 1999
DATE Carlton M. Hadden, Acting Director
1The agency failed to provide a copy of a certified mail return receipt or
any other material capable of establishing the date appellant received the
agency's final decision. Accordingly, since the agency failed to submit
evidence of the date of receipt, the Commission presumes that appellant's
appeal was filed within 30 days of receipt of the agency's final decision
and the appeal is accepted as timely. See, 29 C.F.R. �1614.402.