01992595
11-18-1999
Rafael Pena-Perez, Complainant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Rafael Pena-Perez, )
Complainant, )
)
v. ) Appeal No. 01992595
) Agency No. LD0D98033
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
)
DECISION
The Commission finds that the December 22, 1998 final agency decision
dismissing complainant's formal complaint of discrimination on the
grounds of untimely EEO counselor contact is proper.
The record shows that complainant sought EEO counseling on September 17,
1998, alleging that he had been discriminated against on the bases of
race (Puerto Rican negro), color (black), national origin (Hispanic),
sex (male), and age (over 50) when from June 1997 through May 5, 1998,
he was informed that he would not be reimbursed for temporary housing
allowance during the time his base quarters kitchen was being remodeled.
Subsequently complainant filed a formal complaint of discrimination
concerning this issue. The agency issued a final decision dismissing the
complaint on the grounds of untimely EEO counselor contact after finding
that complainant was verbally informed in June 1997, that he would not
be reimbursed. The agency further found that complainant was informed
on September 9, 1997, to file his claim through the Superintendent.
Finally, the agency found that by memorandum dated March 5, 1998,
complainant was advised to request a special grant and on May 9, 1998, he
received a memorandum on this matter. Therefore, the agency determined
that complainant's �most recent notification of denial of reimbursement
was 131 days prior to [his] initiating contact with an EEO counselor�.
The agency also rejected complainant's continuing violation claim when
it noted that complainant's initial EEO counselor contact did �not
meet the required 45 days from the date of the most recent allegedly
discriminatory event�.
On appeal complainant provides a detailed list of the steps he took to
request the reimbursement in question. The record contains numerous
written communications between complainant and the agency concerning
the reimbursement of the temporary housing allowance. By letter dated
September 9, 1997, complainant was advised that �your claim was considered
under the Military Claims Act and is denied�. We note that the most
recent communication is dated May 1, 1998, and advised complainant that
�it would not grant a waiver for retroactive payment of the special
allowance in [his] particular case�. In response to complainant's
appeal the agency argues that complainant �has represented four (4)
complainants since April 1995 ... [and] has filed three (3) additional
complaints in his own behalf since September 1997".
The Commission applies a "reasonable suspicion" standard to the
triggering date for determining the timeliness of the contact with an
EEO counselor. Cochran v. United States Postal Service, EEOC Request
No. 05920399 (June 18, 1992). Under this standard, the time period
for contacting an EEO counselor is triggered when the complainant should
reasonably suspect discrimination, but before all the facts that would
support a charge of discrimination may have become apparent. Id.;
Paredes v. Nagle, 27 FEP Cases 1345 (D.D.C. 1982). Based on the record
we find that complainant's continuing violation claim is not persuasive.
Complainant suspected or should have reasonably suspected discrimination
by September 9, 1997, when he was advised that his reimbursement claim
had been denied. Accordingly, he should have sought EEO counseling
within the 45-day time limit provided by EEOC Regulations. Instead,
he decided to engage in abundant communication with different officials
to resolve his claim. We have previously held that internal appeals or
informal efforts or the filing of a grievance to challenge an agency's
adverse action do not toll the running of the time limit to contact an
EEO counselor. See Hosford v. Department of Veterans Affairs, EEOC
Request No. 05890038 (June 9, 1989). Accordingly, the complaint was
properly dismissed on the basis of untimely EEO counselor contact.
Based on the foregoing, the final agency decision is 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
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. 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 (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 18, 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:
_________________________