Juan M. Bustos, Complainant,v.Janet Reno, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity CommissionMay 31, 2000
01a01781 (E.E.O.C. May. 31, 2000)

01a01781

05-31-2000

Juan M. Bustos, Complainant, v. Janet Reno, Attorney General, Department of Justice, Agency.


Juan M. Bustos v. Department of Justice

01A01781

May 31, 2000

.

Juan M. Bustos,

Complainant,

v.

Janet Reno,

Attorney General,

Department of Justice,

Agency.

Appeal No. 01A01781

Agency No. I-99-W124

DECISION

On December 21, 1999, complainant filed a timely appeal with this

Commission from an agency decision dated November 30, 1999, pertaining

to his complaint 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. and the Age Discrimination in Employment Act of 1967 (ADEA),

as amended, 29 U.S.C. � 621 et seq.<1> In his complaint, complainant

alleged that he was subjected to discrimination on the bases of race

(Hispanic), age (42), national origin (Mexican American), and in reprisal

for prior EEO activity when:

On January 22, 1999, complainant became aware that he was not selected

for the position of Supervisory Criminal Investigator, GS-1811-13,

advertised under vacancy announcement number MSPH-98-SFR-379 in San

Francisco, California.

The agency dismissed complainant's complaint pursuant to the regulation

set forth at 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and

hereinafter referred to as 29 C.F.R. � 1614.107(a)(2)), for untimely EEO

Counselor contact. Specifically, the agency stated that complainant was

notified of his non-selection by letter dated December 23, 1998, but did

not contact an EEO Counselor until July 9, 1999, beyond the applicable

forty-five (45) day limitations period for timely counselor contact.

On appeal, complainant states that he received notification of the

non-selection on December 30, 1998, and filed a Freedom of Information

Act Request (FOIA) on the same day. Complainant claims that the

information received from his FOIA request on January 21, 1999, was

inadequate and thus, notes he filed another FOIA request for additional

information on April 2, 1999. Complainant claims that it was not until he

received the information from his second FOIA request that he suspected

discrimination. Complainant notes that he received the information from

his second FOIA request on June 3, 1999, and contacted an EEO Counselor

seven days later on June 10, 1999. Thus, complainant states that his

counselor contact was within the forty-five-day limitations period and

therefore timely.

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.

EEOC Regulations provide that the agency or the Commission shall extend

the time limits when the individual shows that he was not notified of the

time limits and was not otherwise aware of them, that he did not know

and reasonably should not have known that the discriminatory matter or

personnel action occurred, that despite due diligence he was prevented

by circumstances beyond his control from contacting the Counselor within

the time limits, or for other reasons considered sufficient by the agency

or the Commission.

In the present case, complainant does not dispute that he received the

notification of his non-selection on December 30, 1998. In addition,

a review of complainant's December 30, 1998 FOIA request reveals that he

requested information concerning the qualifications and national origin

of the other applicants. Thus, the Commission finds that complainant at

least reasonably suspected the alleged discrimination on December 30,

1998, and, as such, complainant's contact with the EEO Counselor was

beyond the forty-five (45) day limitation period. Thus, we find that

complainant's waiting until he had specific information concerning the

matter in question before initiating his complaint resulted in untimely

Counselor contact. See Bracken v. USPS, EEOC Request No. 05900065 (March

29, 1990).

Accordingly, the agency's decision to dismiss complainant's complaint

was proper and is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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); 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 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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 [PAGE 4] 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

May 31, 2000

__________________

Date

1On 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.