Joseph T. Dacri, Appellant,v.Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionApr 16, 1999
01983518 (E.E.O.C. Apr. 16, 1999)

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