Leopoldo Torres, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionFeb 10, 2000
01a00213 (E.E.O.C. Feb. 10, 2000)

01a00213

02-10-2000

Leopoldo Torres, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Leopoldo Torres, )

Complainant, )

)

v. ) Appeal No. 01A00213

) Agency No. 9900251075

Richard J. Danzig, )

Secretary, )

Department of the Navy, )

Agency. )

____________________________________)

DECISION

On October 4, 1999, complainant filed a timely appeal with this Commission

from a final agency decision (FAD) received by him on September 11,

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.<1> The Commission accepts the current appeal

in accordance with EEOC Order No. 960.001.

ISSUE PRESENTED

The issue presented herein is whether the agency properly dismissed the

present complaint for failure to initiate timely contact with an EEO

Counselor.

BACKGROUND

For the relevant period in question, complainant was employed by the

Department of the Navy as a Auto Mechanic Supervisor I, WS-5823-10.

Complainant states that on March 19, 1999, he received a letter of

unacceptable performance from his supervisor because he was not

effectively

controlling his swing shift mechanics. The letter further stated that

complainant had one week in which to respond to the letter. Thereafter,

on or about March 29, 1999 complainant did respond to the above letter,

and met with management but no resolution was achieved. Prior to receipt

of the letter, complainant was involved as a witness in an EEO complaint.

Believing that he was the victim of unlawful discrimination, complainant

initiated contact with an EEO Counselor on May 26, 1999. During the

counseling period, complainant stated that on March 19, 1999, he received

a letter of unacceptable performance from his supervisor. Counseling

failed, and on July 11, 1999, complainant filed a formal complaint

claiming that he was the victim of unlawful employment discrimination on

the bases of reprisal (prior EEO activity). The complaint was comprised

of the matters for which complainant underwent EEO counseling, discussed

above.

On September 7, 1999, the agency issued its final decision finding that

complainant failed to initiate timely contact with an EEO Counselor.

Specifically, the agency found that the alleged discriminatory event

addressed within the complaint occurred on March 19, 1999, and that

complainant's initial EEO Counselor contact on May 26, 1999, was more

than forty-five days after the matter raised in the claim purportedly

occurred.

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. 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 she was not notified of the

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

and reasonably should not have known that the discriminatory matter or

personnel action occurred, that despite due diligence she was prevented

by circumstances beyond her 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, the record goes undisputed, that on March 19,

1999, complainant received a letter of unacceptable performance, that he

believed was in reprisal for prior EEO involvement. The Commission finds

that the complainant had a �reasonable suspicion� of discrimination on

the date in which he received the letter of unacceptable performance.

Moreover, complainant has failed to present any evidence that would

justify either extending or waiving the forty-five day limitations period

pursuant to 29 C.F.R. � 1614.604(c). Therefore, the agency's decision

to dismiss complainant's complaint for failure to initiate contact with

an EEO Counselor in a timely fashion was proper and is AFFIRMED.

CONCLUSION

For the reasons set forth herein, the Commission hereby AFFIRMS the

decision of the agency dismissing complainant's complaint for failure

to initiate timely contact with an EEO Counselor.

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:

February 10, 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 Assistant1On 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.