01986635
10-12-1999
Earnest Ortiz, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Earnest Ortiz v. Department of Transportation
01986635
October 12, 1999
Earnest Ortiz, )
Appellant, )
)
)
v. ) Appeal No. 01986635
) Agency No. 3-98-3066
)
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
______________________________)
DECISION
On August 31, 1998, appellant filed a timely appeal of an August 14,
1998 final agency decision, which was received by appellant on August
24, 1998 dismissing his complaint, pursuant to 29 C.F.R. �1614.107(b),
due to untimely EEO Counselor contact.
In its final decision, the agency identified the allegation of appellant's
April 29, 1998 complaint, which incorporated his letter dated February
24, 1998, as whether appellant was discriminated against when management
failed to support his Office of Workers' Compensation Programs (OWCP)
claim. The agency found that the alleged incident occurred on or before
September 4, 1997, but appellant did not contact an EEO Counselor until
December 18, 1997, which was beyond the requisite time limit.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of
discrimination be brought to the attention of the EEO Counselor within
45 days of the alleged discriminatory event, or the effective date of
an alleged discriminatory personnel action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the limitation period
is triggered under the EEOC Regulations. See 29 C.F.R. �1614.105(a)(2);
Ball v. United States Postal Service, EEOC Request No. 05880247 (July 6,
1988). Thus, the limitations period is not triggered until a complainant
should reasonably suspect discrimination, but before all the facts that
would support a charge of discrimination have become apparent.
In the complaint, appellant alleged that the agency improperly processed
his workers' compensation claim from July through September 4, 1998.
Specifically, appellant indicated that his claim was initially denied on
August 5, 1997; he was subjected to a hostile work environment in July
1997; and the agency included incorrect information or delayed processing
of his claim forms until September 4, 1997. Upon review of the record,
it appears that appellant raised his concerns about his OWCP claim
being processed improperly to management at the time of the incidents.
Furthermore, appellant indicated in the complaint that in July 1997,
he confronted his supervisor about incorrect information contained
in his CA-7 form. Thus, we find that appellant knew or should have
reasonably known that he was discriminated against at the time of the
alleged incidents, i.e., at the latest on September 4, 1998.
On appeal, appellant indicates that on October 7, 1997, he talked to an
EEO Counselor about the agency's inappropriate handling of his OWCP claim.
Appellant states that on October 27, 1997, the EEO Counselor informed
him that he might want to initiate the EEO complaint process concerning
the subject matter. Appellant asserts that on October 31, 1997, he
contacted an EEO Counselor in the agency's Southern Region EEO Office to
initiate the EEO complaint process, and an EEO Counselor contacted him
on December 18, 1997, to start EEO counseling. Based on foregoing, we
find that appellant's EEO Counselor contact with an intent to initiate
an EEO complaint processing occurred on October 31, 1997. Since the
latest alleged discriminatory incident occurred on September 4, 1998,
we find that his October 31, 1997 EEO Counselor contact was untimely.
Accordingly, the agency's final decision is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
October 12, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations