Fermin I. Henriquez, Complainant,v.Daniel R. Glickman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionDec 28, 2000
01990560 (E.E.O.C. Dec. 28, 2000)

01990560

12-28-2000

Fermin I. Henriquez, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.


Fermin I. Henriquez v. Department of Agriculture

01990560

December 28, 2000

.

Fermin I. Henriquez,

Complainant,

v.

Daniel R. Glickman,

Secretary,

Department of Agriculture,

Agency.

Appeal No. 01990560

Agency No. 980383

DECISION

Complainant filed a timely appeal with this Commission from an agency

decision dated September 23, 1998, 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.

The agency characterized his complaint as alleging that he was subjected

to discrimination on the bases of national origin (Hispanic), sex (male),

and reprisal for prior EEO activity when it denied him a $1000 cash

award for meritorious performance in fiscal years 1993 and 1996.

The agency's decision dismissed complainant's claim for untimely EEO

Counselor contact, and alternatively, for raising the same matter

as that raised in a negotiated grievance procedure. Specifically,

the agency found that complainant's October 29, 1997 EEO Counselor

contact was more than forty-five days beyond the July 7, 1997 date he

became aware that he was denied the fiscal year 1996 cash award, and

was therefore untimely. Additionally, the agency also determined that

on July 22, 1997, complainant contacted the union to pursue the matter

under a negotiated grievance procedure.

The record indicates that in a November 14, 1997 letter to the EEO

Counselor, complainant stated that on or around July 7, 1997, he �became

aware that [he] was not going to receive a performance award.� The

record also indicates that after contacting the union on July 22, 1997,

union representatives met with agency officials regarding complainant's

award, and that sometime between October 22 and October 29, 1997, he

made efforts to contact an EEO Counselor.

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 days of the date of

the matter alleged to be discriminatory or, in the case of a personnel

action, within forty-five 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 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 Regulation 29 C.F.R. � 1614.105(a)(2) provides that the agency or

the Commission shall extend the time limits when the individual shows

that she was not notified of the time limits and was not otherwise aware

of them, that she did not know and reasonably should not have known that

the discriminatory matter or personnel action occurred, that despite due

diligence she was prevented by circumstances beyond her control from

contacting the Counselor within the time limits, or for other reasons

considered sufficient by the agency or the Commission.

Upon review of the record, we find that the agency has properly dismissed

complainant's complaint. Although it is unclear from the record exactly

when complainant had knowledge he would not receive a 1993 performance

award, the record clearly shows that complainant was aware on July 7,

1997, that he was not going to receive a performance award for either

1993 or 1996. As complainant's initial EEO counselor contact occurred

no earlier than October 22, 1997, more than forty-five days after the

July 7, 1997 date complainant knew of the alleged discriminatory action,

it was clearly untimely. Moreover, the record shows that complainant

first contacted the union to help him receive his performance awards

before contacting an EEO Counselor, and has otherwise offered no evidence

to indicate that the time limit for his claim should be extended.

Consequently, we find that the agency properly dismissed complainant�s

complaint for untimely EEO Counselor contact.<1>

Accordingly, the agency's decision dismissing complainant's complaint

is AFFIRMED

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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

December 28, 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

______________________________

1As we have affirmed the agency's dismissal for untimely EEO Counselor

contact, we do not address the agency's alternative basis for dismissal.