Philip Gilbert Perez, Complainant,v.Rodney E. Slater, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionNov 30, 1999
01990135 (E.E.O.C. Nov. 30, 1999)

01990135

11-30-1999

Philip Gilbert Perez, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.


Philip Gilbert Perez v. Department of Transportation

01990135

November 30, 1999

Philip Gilbert Perez, )

Complainant, )

)

v. ) Appeal No. 01990135

) Agency No. 5-98-5139

Rodney E. Slater, )

Secretary, )

Department of Transportation, )

Agency. )

______________________________)

DECISION

On October 3, 1998, the complainant filed a timely appeal with this

Commission from a final agency decision (FAD) dated September 3, 1998,

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. and � 501 of the Rehabilitation Act of 1973, as

amended, 29 U.S.C. � 791 et seq.<1> In his complaint, the complainant

alleged that he was subjected to discrimination on the bases of race

(Mexican), physical disability (color vision deficiency), and national

origin (Hispanic) when:

on December 3, 1997, he received a letter requiring a medical restriction

on his medical clearance; and

when the agency would not make his "entry date" retroactive to December

20, 1989.

The complainant's first contact with an EEO counselor occurred on April

13, 1998. The agency dismissed the complainant's 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)), for failure

to comply with the applicable time limits contained in 29 C.F.R. �

1614.105(a)(1).

As to claim (1), the record shows that by similar letters dated December

16, 1993, November 17, 1994, November 13, 1995, and November 13, 1996,

the agency informed the complainant of the same medical restriction

stated in the December 3, 1997 letter. The record further shows that on

February 29, 1996, the agency responded to a letter dated February 29,

1996, in which the complainant requested an explanation of the terms "with

no limitations" and "only valid for ARTC Center controller duties." In

its letter the agency clarified those terms for the complainant.

As to claim (2), the record shows that the agency and the complainant

entered into a resolution agreement dated November 25, 1992, and that

the complainant withdrew his discrimination complaint under agency

case number 91-94. Subsequently, by letter dated February 21, 1995,

the complainant requested that the agency correct his Position Title

"entry date," as he had a verbal understanding that while his hire date

was November 29, 1992, his Position Title "entry date" would retroactively

reflect December 20, 1989. On November 9, 1995, the complainant followed

up with the agency requesting a response to his initial letter.

By letter dated December 12, 1995, the agency informed the complainant

that after an inquiry into the matter, no evidence of such a

verbal agreement was uncovered. The agency stated that its standard

procedures for settlement agreements required all terms to be written and

incorporated into the agreement and because no such term was contained

in the agreement, the agency would not change the complainant's "entry

date." Contained in that letter were the complainant's rights as to

settlement agreement compliance, including a copy of 29 C.F.R. � 1614.504

and the names and addresses of the agency contact and local EEOC office.

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 Ball v. U. S. Postal Service,

EEOC Request No. 05880247 (July 6, 1988). 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 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.

In the instant case, the record supports the agency's dismissal of

the complainant's complaint for failure to comply with the applicable

time limits contained in 29 C.F.R. � 1614.105(a)(1). The record shows

that despite the agency's clarification of the complainant�s medical

restriction in February 1996 and despite the agency's refusal to change

his "entry date" in December 1995, the complainant did not seek EEO

counseling until April 13, 1998, well beyond the regulatory 45-day time

limit. On appeal, the complainant makes no persuasive argument that the

agency or the Commission should extend the applicable time limit or that

he was unaware of either the EEO process or the alleged discrimination

prior to the December 3, 1997 letter which again informed him of the

special consideration for color blindness on his medical clearance.

Even if the Commission were to construe the complainant's claim (2)

in the nature of a breach of settlement agreement, the complainant's

appeal would be considered untimely pursuant to 64 Fed. Reg. 37,644, 37,

659 (1999) (to be codified and hereinafter referred to as 29 C.F.R. �

1614.402(a)). Pursuant to 29 C.F.R. � 1614.402(a), where a complainant

has notified the agency of alleged noncompliance with a settlement

agreement, he must file an appeal no later than 30 days after receipt of

the agency's compliance determination. Here, by letter dated December 12,

1995, the agency notified the complainant that no change to his "entry

date" would be made. As noted, the letter included the complainant's

rights as to settlement agreement compliance, including a copy of 29

C.F.R. � 1614.504 and the names and addresses of the agency contact and

local EEOC office. The complainant filed his appeal with this Commission

on October 3, 1998, nearly three years after he received the agency's

December 12, 1995 letter and therefore, not within the applicable time

limits of 29 C.F.R. � 1614.402(a).

Accordingly, the final agency decision dismissing the complainant's

complaint is hereby AFFIRMED.

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:

Nov 30, 1999 ____________________________

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:

_________________________ __________________________

1 On 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.