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.