01993410
09-14-2000
Manuel Munoz, Jr. Complainant, v. F. Whitten Peters, Secretary, Department of the Air Force, Agency.
Manuel Munoz, Jr. v. Department of the Air Force
01993410
September 14, 2000
.
Manuel Munoz, Jr.
Complainant,
v.
F. Whitten Peters,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01993410
Agency No. KHOF99034
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision (FAD), dated December 14, 1998, 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.<1>
In his complaint, complainant alleged that he was discriminated against
on the bases of race (Hispanic) and national origin (Hispanic) and in
retaliation for his prior protected EEO activity when, on November 9,
1998, 1) he was told by an agency EEO representative that he was filing
too many EEO complaints and costing the government too much money; and
2) he was told, by the same EEO official, that the official had been to
complainant's office and was fully familiar with complainant's EEO file.
The agency dismissed the complaint pursuant to EEOC Regulation 64
Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.107(a)(2)) on the ground that complainant had
not initiated contact with an EEO counselor within the 45-day period
mandated by the applicable regulations.
On appeal, complainant raises no arguments. The agency contends that
its FAD should be affirmed.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination be brought to the attention of the EEO counselor within
forty-five (45) days of the occurrence 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). "The time period is triggered as soon
as a complainant suspects discrimination and the complainant may not wait
until all supporting facts have become apparent." Whalen v. Department
of Justice, EEOC Request No. 05960147 (September 18, 1997).
In this case, it is agreed between the parties that the complainant's
initial counselor contact occurred on November 9, 1998. The parties
disagree over when the allegedly discriminatory acts occurred. The
complaint alleges that the discriminatory events occurred on November
9, 1998. The agency contends that the events in question occurred on
September 21, 1998, i.e., more than 45 days before the initial counselor
contact. We agree with the agency that the record establishes that the
allegedly discriminatory conduct occurred on September 21, 1998.
This conclusion is based on two contemporaneously created documents
recounting admissions made by complainant. The first is a memorandum
authored by complainant, dated September 21, 1998, which describes
the allegedly discriminatory events and states explicitly that they
occurred on September 21, 1998. The second is the EEO counselor's
report which indicates that on December 1, 1998, complainant stated that
the allegedly discriminatory events occurred on September 21, 1998.
However, according to the counselor's report, on December 14, 1998,
�complainant requested that the incident dates in [the] complainant be
changed from [September 21, 1998] to [November 8, 1998].� This evidence,
which complainant makes no attempt to impeach, establishes beyond question
that the allegedly discriminatory events occurred on September 21, 1998.
Therefore, we conclude that the complainant's initial EEO counselor
contact was untimely and that the complaint was properly dismissed.
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. Here, complaint offers no explanation for his delay
in initiating counselor contact. We see no occasion to extend the time
limit.
Accordingly, the agency's dismissal of the complaint for failure to
initiate contact with an EEO counselor within the required time period
was proper and the FAD is hereby 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
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).
COMPLAINANT'S 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 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
September 14, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
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.