01994039
11-04-1999
Pablo Bonilla, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Pablo Bonilla, )
Appellant, )
)
v. ) Appeal No. 01994039
) Agency No. DON 98-66001-015
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
______________________________)
DECISION
On April 22, 1999, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) issued on March 17, 1999, pertaining
to a complaint of unlawful employment discrimination pursuant to Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et
seq. The Commission accepts appellant's appeal in accordance with EEOC
No. 960.001.<1>
The record reflects that on July 27, 1998, appellant initiated contact
with an EEO Counselor. During the counseling period, appellant alleged
that he was being harassed by management. Counseling failed and on
or about September 30, 1998 appellant filed a formal complaint based
upon his national origin (Hispanic) and reprisal (prior EEO activity).
Appellant's complaint, which was clarified by letter dated March 31,
1999, comprised the following: (1) on August 4, 1997 appellant received a
performance appraisal in which the comments did not accurately reflect job
merit factors, (2) on August 5, 1998 appellant received a performance
appraisal in which the comments did not accurately reflect his job merit
factors and (3) on July 23, 1998 appellant realized he was removed from
the JMINI Control Systems project due to reprisal for his September 1997
informal complaint.
The agency, on March 17, 1999, issued their final decision, which was
amended on or about June 8, 1999, dismissing allegation one of appellant's
complaint for failure to initiate timely contact with an EEO Counselor.
The agency found that the alleged discriminatory event addressed in the
complaint occurred on August 4, 1997, and that appellant's initial EEO
contact on July 28, 1998, was more than forty-five days after the matter
raised in the allegation purportedly occurred.
On appeal, the Commission considers appellant's letter dated March
31, 1999. Therein, appellant argues that he will appeal dismissal of
allegation one because, he was did not know that the discriminatory
matter occurred.
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 case at bar, appellant, on appeal, offered no evidence in support
of his claim that he was unaware that the alleged discriminatory action
occurred. In fact, appellant's own complaint is peppered with statements
that confirm appellant had a reasonable suspicion of discrimination.
For example, we note, that within the complaint, appellant states that a
Navy contractor was harassing him, complaining to his supervisor without
merit and that his supervisor was aware of the harassment but neglected
to take action. Surprisingly, appellant claims he actually believed
that his supervisor was pleased to hear complaints about his performance
regardless of merit. Convinced of the discrimination, appellant filed an
informal EEO complaint on the matter in September 1997 but subsequently
withdrew it. Clearly, appellant had a reasonable suspicion that
he was being discriminated against when he received his performance
appraisal but failed to take positive action. For the above reasons,
appellant has failed to provide adequate justification pursuant to 29
C.F.R. �1614.105 (a)(2), for extending the limitations period beyond
the forty-five days. Accordingly, the agency's decision to dismiss
allegation one of appellant's complaint for failure to initiate contact
with an EEO counselor in a timely fashion was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous
interpretation of law, regulation or material fact, or misapplication
of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. In the alternative,
you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR
DAYS of the date you filed your complaint with the agency, or filed your
appeal with the Commission. 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.
Filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
November 4, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
1Since the agency did not supply a copy of a certified mail
return receipt or any other material capable of establishing
the date appellant received the agency's final decision, the
Commission presumes that appellant's appeal was filed within
thirty (30) days of receipt of the agency's final decision. See,
29 C.F.R. �1614.402.