01984008
07-12-2000
Michael Martinez, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Michael Martinez v. Department of Veterans Affairs
01984008
July 12, 2000
.
Michael Martinez,
Complainant,
v.
Togo D. West, Jr.,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01984008
DECISION
We find that the agency's March 31, 1998 decision properly dismissed one
of three claims in complainant's complaint for untimely EEO counselor
contact and two other claims raised in a negotiated grievance.<1>
The record shows that by letter dated November 22, 1995, the agency's
Chief of Staff reduced a proposed 5-day suspension for complainant to
a one-day suspension.
On January 30, 1996, complainant certified that he had received a copy
of a list of EEO Counselors, with tours of duty and phone extension
numbers. Complainant also acknowledged that he had been informed that
an aggrieved person had to contact and EEO Counselor within 45 days of
the discriminatory event.
By letter dated February 27, 1996, the American Federation of Government
Employees (the union) requested that the one-day suspension issued
against complainant be rescinded.<2> Because complainant refused to sign
a proposed agreement regarding the reprimand and one-day suspension,
by letter dated March 28, 1996, the union requested an answer to the
"third step grievance". On March 28, 1996, the agency's Associate Director
denied the grievance.
The record reflects that on March 29, 1996, complainant was not selected
for a position as Audiovisual Production Specialist, GS-9.
By letter dated November 18, 1996, the agency's Associate Director advised
the union that "non-selection is not a grievable issue". On November 22,
1996, complainant once again acknowledged that he had been provided with
a list of EEO counselors. Complainant also acknowledged that he had been
informed about the 45-day time limit for EEO counselor contact.
The EEO Counselor's Report shows that complainant sought EEO counseling
on February 18, 1997, alleging that he had been discriminated against
on the basis of race (Hispanic) when: (1) on March 29, 1996, he was not
selected for the position of Audiovisual Technician; and, (2) on October
23, 1995, he was reprimanded.
Complainant subsequently filed a formal complaint of discrimination
that is the subject of the instant appeal, alleging that he had been
discriminated against on the basis of race when:
(1) on March 29, 1996, he was not selected for the position of Audiovisual
Technician;
(2) on October 23, 1995, he was reprimanded;<3> and
(3) on October 6, 1995, he was harassed.<4>
By letter dated March 20, 1998, complainant's attorney requested a
copy of the alleged grievance filed by complainant concerning his
non-selection for the position of Audiovisual Technician. By letter
dated March 31, 1998, the agency's Personnel Management Specialist
informed complainant's attorney that "nonselection is not a grievable
issue. Therefore, a grievance was not filed regarding [complainant's]
non-selection for the position of Audiovisual Technician".
The agency issued a final decision dismissing the complaint on the grounds
of untimely EEO Counselor contact. The agency found that complainant's
initial EEO Counselor contact had taken place "approximately fourteen
months after his one-day suspension and more than ten months after his
failure to be promoted to the above cited position". The agency also
found that complainant had already raised the issue concerning the
proposed five-day suspension, later reduced to a one-day suspension,
in a grievance.
On appeal, complainant contends that the agency has been unable to provide
evidence to support its contention that a grievance was filed concerning
the issues raised in his formal complaint. Complainant further contends
that upon learning of his non-selection, he spoke to the EEO Program
Manager who allegedly advised him to pursue his claim with the union.
In response, the agency provides a memorandum signed by the agency's
EEO Program manager in which he states that "it is not true that I told
[complainant] that he should pursue his concerns with [the union]".
Complainant has stated that he contacted the agency's EEO Program Manager
as soon as he became aware of his non-selection. The record shows that
complainant was not selected for the position in question on March 29,
1996. Complainant contends that he was misled by the EEO Program Manager
who allegedly advised him to pursue his concerns with the union. The
record shows that on January 30, 1996, complainant had acknowledged
receipt of a copy of a list of EEO counselors, with tours of duty and
phone extension numbers. Complainant also acknowledged that he had
been informed that an aggrieved person had to contact and EEO counselor
within 45 days of the discriminatory event. Notwithstanding these facts,
complainant did not seek EEO counseling regarding his March 29, 1996
non-selection until February 18, 1997.
The Commission has held that where there is an issue of timeliness, the
agency always bears the burden of obtaining sufficient information to
support a reasoned determination as to timeliness. Williams v. Department
of Defense, EEOC Request No. 05920506 (August 25, 1992). Concerning
complainant's complaint, the agency has met its burden. We have previously
held that when an agency leads a complainant to believe he must exhaust
informal avenues for resolving a complaint of discrimination, the time
frame for contacting a counselor will be tolled. Cunningham v. USPS,
EEOC Appeal No. 01956079 (June 24, 1996).
In the instant case, the record reflects that the EEO Program
Manager denies ever advising complainant to pursue his concerns
with the union. Moreover, we find that complainant's argument is
not persuasive. Even though complainant claims that he was misled by
the EEO Program Manager into believing that instead of seeking EEO
counseling, he should pursue his concerns with the union, the record
shows that since January 30, 1996, two months before the non-selection
in question, complainant acknowledged that he had been informed that an
aggrieved person had to contact and EEO Counselor within 45 days of the
discriminatory event. Based on the foregoing, we find that the dismissal
of the claim concerning complainant's non-selection for the position of
Audiovisual Technician on the basis of untimely EEO Counselor contact
was proper.
Volume 64 Fed. Reg. 37,644, 37656 (1999) (to be codified and hereinafter
referred to as EEOC Regulation 29 C.F.R. � 1614.107(a)(4)) provides that
an agency shall dismiss a complaint where the complainant has raised
the matter in a negotiated grievance procedure that permits claims of
discrimination. Complainant's formal complaint of discrimination raised
two other issues: the
October 6, 1995 harassment incident and the subsequent one-day
suspension. The record shows that both these issues were raised by
the union on complainant's behalf and that the grievance was denied
by the agency's Associate Director. Accordingly, both claims were
properly dismissed on the basis that they had been previously raised
in a negotiated grievance. Accordingly, the agency's final decision 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 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
July 12, 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.
2The record shows that the agency's grievance procedure permits claims
of discrimination.
3A review of the record persuades the Commission that complainant
consistently defines the one-day suspension as a "reprimand".
4A review of the record shows that on October 6, 1995, complainant
exchanged words with a supervisor. The record further shows that
this incident culminated in the proposed 5-day suspension, that was
subsequently reduced to a one-day suspension.