01A23525_r
10-17-2002
Alexis E. Agostini, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Alexis E. Agostini v. U.S. Department of Agriculture
01A23525
October 17, 2002
.
Alexis E. Agostini,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A23525
Agency No. 000795
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed for untimely EEO Counselor contact, pursuant to 29
C.F.R. � 1614.107(a)(2), and for failure to state a claim, pursuant to 29
C.F.R. � 1614.107(a)(1). In his complaint, complainant claimed that he
was discriminated against on the bases of national origin (Puerto Rican)
and age (63), when:
On or about December 11, 1996, complainant was required to resign from
International Service (IS) after accepting a Plant Protection and
Quarantine (PPQ) Officer position in Puerto Rico; however, a newly
selected Area Director (AD), who reported for duty on May 24, 1998,
did not have to resign from IS; and
The EEO Counselor improperly processed complainant's EEO complaint by her
lack of communication with complainant and by discouraging complainant
from pursuing his case.
We find that the agency properly dismissed claim 1 of complainant's
complaint for untimely EEO Counselor contact, pursuant to 29 C.F.R. �
1614.107(a)(2). EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires
complaints of discrimination to be brought to the attention of the
EEO Counselor within forty-five (45) days of the date of the claimed
discriminatory matter, or, in the case of a personnel action, within
forty-five (45) days of the effective date of the action. The Commission's
regulations, however, provide that the time limit will be extended when
the complainant shows that he or she was not notified of the time limits
and was not otherwise aware
of them, that he or she did not know and reasonably should not have
known that the discriminatory matter or personnel action occurred,
that despite due diligence he or she was prevented by circumstances
beyond his or her control from contacting the counselor within the time
limits, or for other reasons considered sufficient by the agency or the
Commission. See 29 C.F.R. � 1614.105(a)(2).
The record discloses that complainant should have reasonably suspected
discrimination no later than June 21, 1999, the date on which he wrote
a letter to the agency expressing his concern that he was required
to terminate his enrollment in the Foreign Service, whereas other
individuals were not required to terminate their Foreign Service status.
Complainant did not initiate contact with an EEO Counselor until,
at the earliest, September 28, 1999, which is beyond the forty-five
(45) day limitation period. Complainant has failed to submit adequate
justification, pursuant to 29 C.F.R. � 1614.105(a)(2), for extending
the time limitation for EEO Counselor contact beyond forty-five (45)
calendar days.
Additionally, the agency properly dismissed claim 2. Complainant's claim
of improper processing by the EEO Counselor fails to state a claim because
as a result, complainant did not suffer a personal loss or harm to a term,
condition, or privilege of his employment.
Therefore the agency's final decision dismissing complainant's complaint
is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 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 (S0900)
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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 17, 2002
__________________
Date