01a03243
09-22-2000
Daniel S. Alvarado, Complainant, v. Janet Reno, Attorney General, Department of Justice, Agency.
Daniel S. Alvarado v. Department of Justice
01A03243
September 22, 2000
.
Daniel S. Alvarado,
Complainant,
v.
Janet Reno,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A03243
Agency No. I-99-C116
DECISION
Based on a review of the record, we find that the agency properly
dismissed complainant's complaint, pursuant to 64 Fed. Reg. 37,644,
37,656 (1999)(to be codified and hereinafter cited as 29 C.F.R. �
1614.107(a)(2)), for untimeliness.<1> Complainant alleged that he was
subjected to a hostile work environment and continuous harassment on
the bases of national origin (Hispanic), age (51), and reprisal (prior
EEO activity) when:
on May 15, 1998, complainant received a low appraisal on several elements
of his Officer Corps Rating System;
on December 16, 1998, complainant was told of a memorandum which alleged
that he was uncooperative and unprofessional;
on February 15, 1999, complainant was not afforded the same opportunity
as other agents to work on President's Day; and
on March 10, 1999, the Assistant District Director for Investigations
failed to assign complainant to the unit he had requested.
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) which states that the agency
shall dismiss a complaint that fails to comply with the applicable time
limits contained in 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified
and hereinafter referred to as 29 C.F.R. � 1614.105); 64 Fed. Reg. 37,644,
37,656 (1999) (to be codified and hereinafter referred to as 29 C.F.R. �
1614.106); and � 1614.204(c), unless the agency extends the time limits
in accordance with � 1614.604(c).
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel action,
within forty-five (45) days of the effective date of the action. The
Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
In the present case, the FAD found that complainant contacted the EEO
Counselor on May 7, 1999, after receiving low appraisal ratings on
May 15, 1998, and after becoming aware of the memorandum on December
16, 1998. Therefore, the agency found that complainant contacted the
EEO Counselor well after the expiration of the appropriate time limit.
On appeal, complainant notes, as to claim (2), that on April 20, 1999,
he received through a Freedom of Information Act (FOIA) request a copy
of the memorandum at issue which accused complainant of negligence in
his duties which was different from what he was told in December 1998.
Based on the actual accusations within the memorandum, complainant
contacted the EEO Office on May 7, 1999. Complainant contends that he was
told of the memorandum which called him uncooperative and unprofessional
on December 16, 1998. Thus, the Commission finds that complainant at
least reasonably suspected the alleged discrimination on December 16,
1998, and, as such, complainant's contact with the EEO Counselor was
beyond the forty-five (45) day limitation period. Thus, we find that
complainant's waiting until he had specific information concerning the
matter in question before initiating his complaint resulted in untimely
Counselor contact. See Bracken v. United States Postal Serv., EEOC
Request No. 05900065 (March 29, 1990). As to claims (1), (3), and (4), we
find that complainant contacted the EEO Counselor in an untimely manner.
Therefore, the Commission AFFIRMS the agency's dismissal of the
complaint.
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 (S0400)
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
September 22, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this 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.