01983835
05-12-1999
Jorge I. Rivera, Appellant, v. Aida Alvarez, Administrator, Small Business Administration, Agency.
Jorge I. Rivera v. Small Business Administration
01983835
May 12, 1999
Jorge I. Rivera, )
Appellant, )
)
v. ) Appeal No. 01983835
) Agency Nos. 05-95-482
Aida Alvarez, ) 06-95-485
Administrator, )
Small Business Administration, )
Agency. )
___________________________________)
DECISION
Appellant filed the instant appeal from the agency's decision dated
January 16, 1997 dismissing a portion of appellant's consolidated
complaint for untimely EEO Counselor contact. The allegation at issue is
defined as follows: Appellant and other Hispanic persons were the subject
of ethnic jokes. The agency previously issued a decision dated October
27, 1995 dismissing the allegation for untimely EEO Counselor contact.
The Commission found that it was unclear when the alleged violation took
place and we remanded the allegation so that the agency could request that
appellant provide information indicating when the incidents took place.
Rivera v. Small Business Admin., EEOC Appeal No. 01961051 (Nov. 12,
1996), request for reconsideration denied, EEOC Request No. 05970163
(July 10, 1998).
The agency subsequently requested such clarification of the dates of
the incidents in the allegation. Appellant responded in a letter dated
December 5, 1996 in which he stated that the jokes "happened on a frequent
basis until [Person A] was informed that an EEO complaint had been filed
against him." Appellant also explained: "It is very difficult to provide
the specific days and time of the occurrence." In the January 16, 1997
decision the agency found that appellant failed to provide the requested
information and dismissed the allegation for failure to cooperate.
The Commission finds that the allegation at issue is more
appropriately dismissed for untimely EEO Counselor contact pursuant
to 29 C.F.R. �1614.107(b). Appellant has not shown that any joke at
issue occurred 45 days or less prior to his initial contact of an EEO
Counselor. Appellant may be arguing that he was unaware of the time
frame for contacting an EEO Counselor. The Commission finds that this
argument was not raised in the appeal in EEOC Appeal No. 01961051 and
that it is too late to raise such an argument for the first time now.
Even if appellant was not informed of the time limit for contacting an EEO
Counselor, appellant has not provided sufficient information clarifying
the dates of this allegation so that an investigation can be conducted.
Because of our disposition we do not address whether the allegation is
also properly dismissed for failure to cooperate.
The agency's decision dismissing a portion of the consolidated 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. �l6l4.604(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. 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 (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:
May 12, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations