Daniel H. Aquilera, Complainant,v.John M. McHugh, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionFeb 6, 2012
0120114004 (E.E.O.C. Feb. 6, 2012)

0120114004

02-06-2012

Daniel H. Aquilera, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.




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