0120114004
02-06-2012
Daniel H. Aquilera,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120114004
Agency No. AWRAMC11MAY02045
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated August 3, 2011, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. § 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a Contract Social Worker at the Agency’s Walter Reed Hospital facility
in Washington, DC.
On July 21, 2011, Complainant filed a formal complaint alleging that
the Agency subjected him to discrimination on the bases of race/
national origin (Hispanic), sex (male), religion (Protestant), age
(69), and reprisal when: he was openly and repeatedly criticized by his
team leader; biased and derogatory comments were made about Hispanics
and Puerto Ricans by the same team leader; the team leader ridiculed
Complainant and made him appear incompetent; the team leader demanded
that Complainant make changes to a note he (Complainant) had written;
he was not counseled about his work; he was retaliated against after
he complained about the team leader; and in May 2011, the team leader
yelled and ridiculed him, accusing him of making “a serious mistake
by taking a patient to Ward 54 without his help.”
The Agency dismissed the complaint, pursuant to 29 C.F.R. §
1614.107(a)(2), for untimely filing of the formal complaint. The instant
appeal followed.
ANALYSIS AND FINDINGS
The regulation set forth at 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 29 C.F.R. §
1614.106(b) which, in turn, requires the filing of a formal complaint
within fifteen (15) days of receiving the notice of the right to do so.
A certified mail return receipt, signed by Complainant, discloses that
he received the notice of right to file a formal complaint on June
20, 2011. Although the notice indicated that Complainant had to file
a formal complaint within fifteen (15) calendar days of its receipt,
Complainant did not file his formal complaint until July 21, 2011,
which is beyond the limitation period.
On appeal, Complainant concedes that he filed his formal complaint
beyond the requisite fifteen-day period. However, he states that he
injured his back on June 5, 2011, and was taking medication for it.
We have consistently held, in cases involving physical or mental health
difficulties, that an extension is warranted only where an individual
establishes he or she was so incapacitated by his or her medical
condition that he or she was unable to meet the regulatory time limits.
See Davis v. U.S. Postal Serv., EEOC Request No. 05980475 (Aug. 6, 1998);
Crear v. U.S. Postal Serv., EEOC Request No. 05920700 (Oct. 29, 1992).
Complainant has not established that his medical condition incapacitated
him from filing his complaint in a timely manner, which would have
been approximately one month after he injured his back. Therefore,
we do not find adequate justification for excusing his delay in this case.
Accordingly, the Agency's final decision dismissing Complainant's
complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614 (EEO MD-110), at 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
77960, Washington, DC 20013. 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 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).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
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. 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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 6, 2012
__________________
Date
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0120114004
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120114004