01983518
04-16-1999
Joseph T. Dacri, Appellant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Joseph T. Dacri v. Social Security Administration
01983518
April 16, 1999
Joseph T. Dacri, )
Appellant, )
)
v. ) Appeal No. 01983518
) Agency No. 98-0241-SSA
Kenneth S. Apfel, )
Commissioner, )
Social Security Administration, )
Agency. )
_________________________________)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning his complaint of unlawful employment discrimination,
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. The final agency decision was issued on
March 18, 1998. The appeal was filed on April 6, 1998. Accordingly,
the appeal is timely (see 29 C.F.R. �1614.402(a)), and is accepted in
accordance with EEOC Order No. 960, as amended.
On July 18, 1997, appellant initiated contact with an EEO Counselor.
Informal efforts to resolve his concerns were unsuccessful. On August 7,
1997, appellant resigned from agency employment. The record contains a
Notice of Right to File a Formal Complaint of Discrimination, signed and
dated by appellant on August 19, 1997. Therein, appellant was notified
that he had fifteen days from the date of receipt of the Notice in which
to file a timely complaint.
On October 28, 1997, appellant filed a formal complaint, alleging that he
was the victim of unlawful employment discrimination on the basis of sex.
By letter dated January 16, 1998, appellant informed the agency that
he had "initially filed late due to my incorrect knowledge of the EEO
process." Specifically, appellant noted that he had resigned prior
to the completion of the informal processing of the instant complaint,
and thought that the EEO Counselor would file the formal complaint on
his behalf. Appellant stated that his wife, who was an agency employee
at the time that EEO counseling for the instant complaint had been
completed, brought home the EEO report and "just told me that it was
all taken care of." Appellant further stated that he set the papers
aside and did not review them until "some time later" when he discovered
that it was necessary to file a formal complaint if he wished to further
pursue the EEO complaint process.
On March 18, 1998, the agency issued a final decision. Therein, the
agency determined that appellant's formal complaint was comprised of
four allegations, and dismissed three of the allegations for failure to
timely contact an EEO Counselor. The agency also dismissed the entire
complaint on the alternative grounds of mootness. Moreover, the agency
dismissed the complaint on the alternative grounds of failure to file
a timely complaint. Specifically, the agency found that appellant was
issued a Notice of Right to File a Formal Complaint in August 1997,
but did not file a formal complaint until October 1997. The agency
rejected the reasons for the delay in filing a formal complaint, set
forth in appellant's letter of January 16, 1998.
EEOC Regulation 29 C.F.R. �1614.106(b) requires the filing of a written
complaint with an appropriate agency official within fifteen (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).
The record in this case indicates that appellant received a notice
of the right to file a formal discrimination complaint on August
19, 1997. The notice informed him that he had fifteen days from the
date of receipt of the notice in which to file a formal complaint.
The record further reflects that appellant did not file a formal
complaint within fifteen days of his receipt of this notice but, instead,
filed the formal complaint on October 28, 1997. We are unpersuaded by
appellant's assertion in his letter of January 16, 1998, that his delay
was justified because of his incorrect knowledge of the EEO process;
his assumption that an EEO Counselor would file a formal complaint on
his behalf; and his reliance upon his wife's assurances that the matters
relating to his complaint had been taken care of. Appellant failed
to present adequate justification, pursuant to 29 C.F.R. �1614.604(c)
for extending the filing period. Accordingly, the agency's decision to
dismiss appellant's complaint as untimely was proper and is AFFIRMED.
Because we affirm the agency's decision to dismiss appellant's complaint
for the reason stated herein, we find it unnecessary to address the
agency's decision to dismiss appellant's complaint on alternative
grounds.
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:
April 16, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations