0120112725
10-12-2011
Jesse Garcia, Jr., Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.
Jesse Garcia, Jr.,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation,
(Federal Aviation Administration),
Agency.
Appeal No. 0120112725
Agency No. 201023552FAA05
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated March 15, 2011, 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. and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. § 791 et seq. Upon review, the Commission finds that
Complainant's complaint was properly dismissed pursuant to 29 C.F.R. §�
�1614.107(a)(2), for untimely EEO Counselor contact.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a
former Engineering Technician at the Agency’s Mike Monroney Aeronautical
Center facility in Oklahoma City, Oklahoma.
On January 11, 2011, Complainant filed a formal complaint alleging
that the Agency subjected him to discrimination on the bases of race
(Asian), national origin (Hispanic), disability (ADD), and reprisal for
prior protected EEO activity under Title VII of the Civil Rights Act of
1964 when:
1. in April and May 2008, he was forced to work despite having suffered
a painful on- the-job injury;
2. in May 2008, his team lead spit on him;
3. he was terminated from his position of Engineering technician on
November 4, 2008;
4. in November 2008, in his last paycheck, he was denied 15 hours of
overtime that he had earned; and
5. in or around February 2009, the Agency notified him that he was
expected to pay back 30 hours of overtime pay.
Reasoning the Complainant’s initial contact with an EEO counselor on
these matters occurred on September 3, 2010, a year and a half after the
latest alleged event in February 2009, the Agency dismissed the matter
for failure to contact an EEO counselor in a timely manner. The Agency
also dismissed claims 2 and 3 as identical to those raised in an earlier
complaint (Agency No. 2009-22391-FAA-05). The instant appeal followed.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides that
the Agency shall dismiss a complaint that states the same claim that
is pending before or has been decided by the Agency or Commission.
The record established that Complainant had previously contacted an
EEO counselor in November 2008, and raised his termination and the
events leading up to it. In January 2009, he filed a formal complaint
on these matters. That complaint was identified as Agency Complaint
No. 2009-22391-FAA-05, and was later procedurally dismissed by the
Agency. Complainant appealed the dismissal to the Commission. In Appeal
No. 0120092391 (September 21, 2009), the appeal was dismissed because
it was untimely filed. Accordingly, we find that the Agency correctly
dismissed the claims leading up and including Complainant’s termination
as stating the same claims that have already been adjudicated in an
earlier complaint.
With regard to claims 4 and 5, and to the extent that claim 1 was not
raised in the previous complaint, the record shows that Complainant
first sought EEO counseling on these matters on September 3, 2010.
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. We find that Complainant’s EEO counselor contact was
well beyond the forty-five (45) day limitation period, supporting the
Agency’s dismissal of these claims. Complainant argues that he contact
the EEOC’s Oklahoma Area Office in April 2009 to raise these claims.
While the record supports his assertion, it also shows that Complainant
was advised in writing at the time that he needed to contact an Agency
EEO counselor in order to invoke the 29 C.F.R. Part 1614 federal sector
complaint process. Although Complainant acknowledged receiving this
advice, he did not contact an EEO counselor until September 2010, well
over a year later. Thus, we find Complainant has presented no persuasive
arguments or evidence warranting an extension of the time limit for
initiating EEO Counselor contact.
Accordingly, the Agency's final decision dismissing Complainant's
complaint is AFFIRMED
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
October 12, 2011
__________________
Date
2
0120112725
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112725