0120083072
06-10-2011
Leonard Aiello, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (Immigration and Customs Enforcement), Agency.
Leonard Aiello,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
(Immigration and Customs Enforcement),
Agency.
Appeal No. 0120083072
Agency No. HS-08-ICE-001427
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated May 30, 2008, 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.
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 worked as
a Criminal Investigator at the Agency’s Chicago Office of Investigations
in Oakbrook Terrace, Illinois. On January 21, 2008, Complainant filed
a formal complaint alleging that the Agency retaliated against him for
prior protected EEO activity when:
1. After December 29, 2003, the Agency failed to properly or timely
process and submit his leave buy-back request related to his May 15, 2002
on-the-job injury processed and adjudicated under Office of Workers’
Compensation Programs (OWCP) file number 132054539;
2. After October 29, 2004, the Agency failed to properly or timely
process and submit his leave buy-back request related to his February 4,
2004 on-the-job injury processed and adjudicated under OWCP file number
102036179;
3. Since at least January 2007, the Agency has not properly or timely
processed his change of address; and,
4. Since February 8, 2006, the Agency has failed to comply with a
provision of the negotiated settlement agreement that resolved previously
filed formal complaint HS-04-ICE-000283.
The Agency dismissed the complaint pursuant to 29 C.F.R. 1614.107(a)(2)
for untimely EEO Counselor contact. The Agency determined that
Complainant’s most recent claim occurred in February 2006; however,
Complainant did not contact an EEO Counselor until October 12, 2007,
nearly 18 months beyond the 45-day deadline. In addition, regarding claim
(4), the Agency determined that Complainant alleged noncompliance with a
negotiated settlement agreement. Pursuant to that agreement, allegations
of noncompliance must be filed with the Agency’s Office of Civil Rights
and Civil Liberties within 30 calendar days of Complainant’s knowledge
of the alleged breach. As a result, the Agency found that this claim was
not properly raised and instructed Complainant to direct his allegations
with the Office of Civil Rights and Civil Liberties.
On appeal, as to claims (1) and (2), Complainant asserts that the Agency
gave him the runaround and he had no way of knowing who was responsible
for the excessive delays in processing his leave buy-back requests.
Regarding claim (3), Complainant contends that the Agency provided
repeated assurances that the Agency was diligently working on his change
of address, but he was again given the runaround. Finally, as to claim
(4), Complainant maintains that the Agency ignored his multiple requests
for EEO counseling. Accordingly, Complainant requests that the Commission
reverse the Agency’s dismissal. The Agency requests that the Commission
affirm its dismissal.
ANALYSIS AND FINDINGS
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. Dep’t of the Navy, EEOC Request No. 05970852 (Feb. 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.
Upon review, the Commission finds that claims (1) and (2) were properly
dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO
Counselor contact. The record discloses that the alleged discriminatory
events occurred around December 29, 2003 and October 29, 2004, and
Complainant did not contact an EEO Counselor until October 12, 2007.
The Commission has consistently held that a Complainant must act with due
diligence in the pursuit of his claim or the doctrine of laches may apply.
See O'Dell v. Dep’t of Health and Human Serv., EEOC Request No. 05901130
(Dec. 27, 1990). The doctrine of laches is an equitable remedy under
which an individual's failure to pursue diligently a course of action
could bar a claim. Complainant waited approximately three years before
he finally contacted an EEO Counselor regarding these claims. Likewise,
as to claim (3), Complainant was aware as early as January 2006, that
the Agency had not properly processed his change of address, but did
not raise these matters with an EEO Counselor until over a year and a
half later. On appeal, Complainant has presented no persuasive arguments
or evidence warranting an extension of the time limit for initiating
EEO Counselor contact. Therefore, the Commission finds that the Agency
properly dismissed claims (1), (2), and (3) as untimely.
Finally, as to claim (4), the Commission finds that this matter is not
properly before the Commission on appeal. Specifically, Complainant's
alleged settlement breach claim deals with the implementation of an
MSPB settlement agreement. Therefore, the MSPB has proper jurisdiction
of this matter. Leone v. Dep’t of the Navy, EEOC Appeal No. 01A01573
(May 22, 2000); Carlo v. U.S. Postal Serv., EEOC Request No. 05940759 (May
4, 1995). Accordingly, the Commission AFFIRMS the Agency’s dismissal.
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 (Nov. 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
June 10, 2011
Date
2
0120083072
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120083072