Daniel S. Alvarado, Complainant,v.Janet Reno, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity CommissionSep 22, 2000
01a03243 (E.E.O.C. Sep. 22, 2000)

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.