01a01965
06-09-2000
Ruben Sandoval, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Ruben Sandoval, )
Complainant, )
)
v. ) Appeal No. 01A01965
Lawrence H. Summers, ) Agency No. TD-00-4068
Secretary, )
Department of the Treasury, )
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated December 15, 1999, dismissing 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.<1> In his complaint,
complainant alleged that he was subjected to discrimination on the bases
of national origin (Hispanic) and in reprisal for prior EEO activity
when:
On August 8, 1999, complainant was suspended from duty without pay for
thirty (30) days.
The agency dismissed complainant's complaint pursuant to the regulation
set forth at 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and
hereinafter referred to as 29 C.F.R. � 1614.107(a)(2)), on the
grounds that the formal complaint was untimely filed. Specifically,
the agency claimed that complainant received his Notice of Right to File
a Discrimination Complaint on October 4, 1999; however, he did not file
his formal complaint until November 30, 1999, more than fifteen (15) days
after receipt of this Notice. The agency noted that complainant filed a
statement with his formal complaint explaining the late filing. In that
statement, complainant stated that when he signed, dated, and returned
the October 4, 1999 Notice, he believed that the EEO Counselor would file
the formal complaint on his behalf. Complainant further explained that
it was his understanding that a decision would be forthcoming within
sixty (60) days, indicating whether the complaint was accepted or denied.
Complainant stated that when he did not receive a decision, he questioned
the EEO Office on November 23, 1999, which resulted in complainant being
sent the agency's official formal complaint form on November 29, 1999.
The record shows that complainant filed the formal complaint on November
30, 1999. The agency stated that even if the EEO Counselor provided
complainant misleading information, there is insufficient justification
to extend the applicable time limit for filing a formal complaint.
In addition, the agency argued that despite complainant's contention that
he was not provided the proper form to file his formal complaint until
November 29, 1999, he still received and signed the Notice on October 4,
1999, setting out the time limits for timely filing a complaint. Finally,
the agency claimed that complainant was aware of the time limit for timely
filing a formal complaint as evidenced by the fact that he previously
filed timely complaints in Agency Case Number TD-97-4136, TD-97-4329,
TD-98-4303, TD-99-4093, and TD-99-4227, filed on March 6, 1997, September
24, 1998, September 24, 1998, and May 19, 1999, respectively.
On appeal, complainant alleges that he was misinformed by the agency
regarding the proper method for filing his mixed-case complaint.
Complainant states that when he initially filed the informal EEO
complaint on September 12, 1999, he advised the EEO Counselor of his
desire to file a mixed MSPB/EEO complaint. Complainant claims that the
EEO Counselor told him that he had to file an MSPB appeal form with the
MSPB and submit a sworn statement to the EEO Office. Complainant states
that within fifteen (15) days of receipt of the Notice of Right to File,
he filed his MSPB appeal (Case No. SF-0752-00-0017-I-1) and submitted a
sworn statement to the EEO Counselor and the agency's Regional Complaint
Center as his formal EEO complaint. Complainant claims that he then
filed a motion to dismiss his MSPB Appeal in order to seek relief in the
EEO forum, per his original intent. According to complainant, the MSPB
Administrative Judge (AJ) granted complainant's motion to dismiss his
appeal without prejudice and with leave to refile but withheld ruling on
whether the appeal was timely filed. Complainant states that on November
4, 1999, the agency advised complainant of the need to file TDF 62-03.5,
the agency's formal complaint form, to accompany his sworn statement.
Complainant states that he complied with this request, although it was
contrary to what the EEO Counselor had previously told him. Finally,
complainant states that in its letter of July 30, 1999, informing
complainant that his suspension would be effective as of August 8, 1999,
the agency failed to properly inform complainant of his mixed-case appeal
rights.
The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999)(to be
codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(2)) states,
in pertinent part, that an agency shall dismiss a complaint which fails
to comply with the applicable time limits contained in Fed. Reg. 37,644,
37,656 (1999)(to be codified and hereinafter referred to as 29 C.F.R. �
1614.106), which, in turn, requires the filing of a formal complaint
within fifteen (15) days of receiving notice of the right to do so.
In the present case, the record indicates that complainant received
the Notice of Right to File on October 4, 1999. In order be considered
timely, complainant's formal complaint should have been filed by October
19, 1999. Complainant claims that the EEO Counselor indicated that he
would file the formal complaint on complainant's behalf. We note that
the Commission has extended the fifteen (15)day time limit for filing
a complaint in some instances where a complainant has been misled by
a Counselor to believe that the formal complaint was being filed by
the Counselor. Miller v. Department of Veterans Affairs, EEOC Appeal
No. 01945174 (January 25, 1995). In addition, complainant states
that he filed a sworn statement to the EEO Office within fifteen (15)
days of receipt of the Notice of Right to File. The record does not
contain a copy of the sworn statement complainant claims to have filed.
We find the record does not contain sufficient information to determine
whether complainant filed a formal complaint within the applicable time
limit or whether the time limit should be extended.
Accordingly, we VACATE the agency's decision and REMAND the complaint
for further processing in accordance with the Order below.
ORDER
The agency is ORDERED to take the following actions:
Obtain a statement from the identified EEO Counselor regarding his
instructions for filing a formal EEO complaint, specifically, whether
he indicated to complainant that he would file a formal complaint on
complainant's behalf and for filing a mixed case complaint;
Obtain a statement from complainant regarding the EEO Counselor's
instructions for filing a formal EEO 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;
Supplement the record with a copy of the sworn statement purportedly
submitted by complainant within fifteen (15) days of his receipt of the
Notice of Right to File and any other relevant information;
Within forty-five (45) calendar days of the date this decision becomes
final, the agency shall issue a new final agency decision or notify
complainant of the claims to be processed.
A copy of the agency's new final decision or notice of the claims to be
processed must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to the
complainant. If the agency does not comply with the Commission's order,
the complainant may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The complainant also has the right to file a
civil action to enforce compliance with the Commission's order prior
to or following an administrative petition for enforcement. See 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �
1614.503(g). Alternatively, the complainant has the right to file a
civil action on the underlying complaint in accordance with the paragraph
below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407
and 1614.408. A civil action for enforcement or a civil action on the
underlying complaint is subject to the deadline stated in 42 U.S.C. �
2000e-16(c)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. 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 (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:
June 9, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date 1On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at www.eeoc.gov.