01a52669
07-12-2005
Frank T. Fajardo, Complainant, v. Michael Leavitt, Secretary, Department of Health and Human Services, Agency.
Frank T. Fajardo v. Department of Health and Human Services
01A52669
July 12, 2005
.
Frank T. Fajardo,
Complainant,
v.
Michael Leavitt,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 01A52669
Agency No. ACF-001-05; OSH-010-05
DECISION
Complainant appeals to the Commission from the agency's February 2, 2005
decision dismissing his complaint. Complainant alleges discrimination
on the bases of race, national origin and age when:
On May 22, 2003, he received a memorandum directing his reassignment
from Denver, Colorado to Washington, D.C.; however, the effective date
was early September 2003;
On June 29, 2004, he was turned down after volunteering for a possible
detail to the White House Conference on Aging; and
In April 2004, he learned that he did not make the list of best qualified
candidates referred for an interview for the SES Candidate Development
Program under Vacancy Announcement Number HHS-OS-2004-0088, advertised
January 13, 2004 - February 15, 2004.
The agency dismissed claims 1 and 3 for untimely EEO Counselor contact
pursuant to 29 C.F.R. � 1617.107(a)(2). The agency dismissed claim 2
for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
With regard to claim 1, complainant did not initiate EEO Counselor contact
until November 21, 2003, which is beyond the 45-day limitation period.
By complainant's own admission, complainant �was on official travel
conducting a workshop at a conference in Washington, D.C. in early
September 2003. That travel status was changed after-the-fact in late
September when the agency advised [him] that the official date for the
relocation would be in early September, after [he] had been led to believe
it would be in Oct./Nov.� We find that complainant should have reasonably
suspected discrimination by late September 2003. Complainant failed to
present adequate justification to warrant extension of the applicable
limitation period, and thus, complainant's EEO Counselor contact on
November 21, 2003 is untimely.
With respect to claim 3, the record indicates that on July 17, 2004,
complainant informed his EEO Counselor that in April 2004, he learned
that he did not make the list of best qualified candidates referred for
an interview for the SES Candidate Development Program under Vacancy
Announcement Number HHS-OS-2004-0088, advertised January 13, 2004 -
February 15, 2004. With regard to claim 3, we find that complainant
should have reasonably suspected discrimination in April 2004.
Complainant did not initiate EEO Counselor contact until July 17, 2004,
which is beyond the 45-day limitation period. Complainant failed to
present adequate justification to warrant extension of the applicable
limitation period.
Finally, with regard to claim 2, we find that complainant has shown harm
to a term, condition, or privilege of employment and thus, states a claim.
The agency's decision dismissing claims 1 and 3 is AFFIRMED. The agency's
decision dismissing claim 2 is REVERSED, and we REMAND claim 2 to the
agency for further processing in accordance with this decision and
applicable regulations.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
July 12, 2005
__________________
Date