01990488
01-11-2000
Fernando Silva, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Fernando Silva v. Department of the Treasury
01990488
January 11, 2000
Fernando Silva, )
Complainant, )
)
v. )
) Appeal No. 01990488
Lawrence H. Summers, ) Agency No. 98-2279
Secretary, )
Department of the Treasury, )
Agency. )
____________________________________)
DECISION
On October 21, 1998, complainant filed a timely appeal with this
Commission from a final agency decision (FAD), dated October 16,
1998, dismissing his complaint for untimely counselor contact.<1> The
Commission accepts the appeal in accordance with EEOC Order No. 960,
as amended.
On July 8, 1998<2>, complainant contacted the EEO office regarding
claims of unlawful employment discrimination in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.,
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq., and Section 501 of the Rehabilitation Act of
1973, as amended, 29 U.S.C. � 791 et seq. Informal efforts to resolve
complainant's concerns were unsuccessful. Accordingly, on August 17,
1998, complainant filed a formal complaint.
The agency framed complainant's claim as follows: complainant was not
considered, interviewed and selected for a Supervisory Customs Inspector,
GS-1890-12 position, under Vacancy Announcement Number WETEX/98-003 BB.
The agency issued a FAD, dismissing the complaint for untimely EEO
Counselor contact. Specifically, the FAD indicated that complainant
was notified by e-mail on March 5, 1998 that he would not be considered
for the position. Complainant requested that the agency reconsider
its determination not to consider him for the position. However, in
a letter dated March 13, 1998, the agency reiterated that complainant's
application would not be considered, as it was received after the closing
date of the announcement for the subject position.. According to the
agency, complaint should have contacted a counselor within forty-five
days of learning that he would not be considered. Complainant, however,
did not contact an EEO Counselor until July 8, 1998.
On appeal, complainant argues that although he was notified on March
13, 1998 that he would not be considered, the selection was not made
until July 5, 1998. Complainant indicates that he sought counseling
days after the selection, and indicates that to do so earlier "would
be premature since any number of things could have happened between his
notification and the selection." Moreover, complainant contends that the
"personnel action" at issue is not only consideration for the position,
but also the agency's failure to interview and select him.
In response, the agency maintains that the alleged discrimination concerns
the agency's failure to accept and process complainant's application, and
that complainant should have contacted the EEO office within forty-five
days of learning that his application was not accepted.
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.
In the instant case, complainant asserts that although he was notified in
March 1998 that his application would not be considered, it was not until
the selection was made in July 1998 that the time limitation began to run.
However, the record reflects that complainant questioned the agency's
failure to consider his application on March 9, 1998 and requested that
the agency reconsider. Therefore, it is reasonable to conclude that
complainant at least suspected, or should have suspected, the alleged
discrimination when he was notified in March 1998 that his application
would not be considered. Complainant, however, did not contact the EEO
Counselor until July 8, 1998. Moreover, the Commission has found that,
since the limitation period for contacting an EEO Counselor is triggered
by the reasonable suspicion standard, waiting until one has "supporting
facts" or "proof" of discrimination before initiating a complaint can
result in untimely Counselor contact. See Bracken v. U.S. Postal
Service, EEOC Request No. 05900065 (March 29, 1990). Accordingly, the
agency's dismissal of the complaint for untimely counselor contact was
proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
Jan. 11, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
1 On 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.
2 The record reflects three different dates for the time of initial
counselor contact: July 1, 1998; July 8, 1998, and July 10, 1998.
The Commission will refer to July 8, 1998, the date cited in the
FAD. The Commission notes, moreover, that its determination on the
instant appeal would not change, irrespective of which of the three
dates was complainant's initial EEO Counselor contact date.