Randy A. Mendoza, Appellant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionNov 5, 1999
01991212 (E.E.O.C. Nov. 5, 1999)

01991212

11-05-1999

Randy A. Mendoza, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Randy A. Mendoza v. Department of the Army

01991212

November 5, 1999

Randy A. Mendoza, )

Appellant, )

)

v. ) Appeal No. 01991212

) Agency No. AD7RFO981010070

Louis Caldera, )

Secretary, )

Department of the Army, )

Agency. )

______________________________)

DECISION

On November 24, 1998, appellant filed a timely appeal with this Commission

from a final agency decision (FAD) dated October 23, 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., �501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791

et seq., and the Age Discrimination in Employment Act of 1967 (ADEA),

as amended, 29 U.S.C. �621 et seq. In his complaint, appellant alleged

that he was subjected to discrimination on the bases of race (Pacific

Islander), national origin (Philippines), physical disability, age,

and in reprisal for prior EEO activity when:

On June 29, 1998, two members of management met with appellant and

instructed him not to engage in disruptive or abusive behavior in

appellant's personal conduct toward others in relation to the matters

contained in appellant's previous EEO complaints; this meeting supposedly

was to be conducted by a Colonel (third member of management) in response

to an inquiry from appellant's Congressional Representative;

On July 14, 1998, management officials issued appellant a reprimand

based on hearsay from a co-worker who stated that appellant called the

supervisor a "M****R F****R;"

On July 14, 1998, management officials denied appellant union

representation prior to the issuance of the letter of reprimand;

On July 15, 1998, a supervisor failed to ensure that another agency

official provide accurate, up-to-date medical information to the

attending medical physician regarding appellant's Office of Workers'

Compensation Program (OWCP) claim; and

On August 5, 1998, appellant was denied the option to enroll in the

Priority Placement Program (PPP) due to the issuance of the July 14,

1998 Letter of Reprimand.

The agency accepted allegations (2) - (5), but dismissed allegation

(1) pursuant to EEOC Regulation 29 C.F.R. �1614.107(b), for untimely

counselor contact.

On appeal, appellant argues that he did not realize the meeting from

allegation (1) was discriminatory in nature until he was compiling a list

of incidents in August 1998, and realized that the meeting occurred in the

midst of a string of reprisal incidents. Appellant alleges that he became

aware of the discriminatory nature of allegation (1) on August 20, 1998.

Appellant also alleges that the agency improperly processed his complaint,

and has since failed to take action on allegations subsequently raised

with a counselor for a new complaint.

In response, the agency contends that appellant contacted an EEO Counselor

on August 28, 1998. The agency notes that in his request for counseling,

and his formal complaint, appellant claimed that allegation (1) was an

obvious attempt to intimidate appellant and compel appellant to avoid

the EEO process. The agency also notes that appellant expressed his

discontent with the meeting identified in allegation (1) via e-mail dated

June 30, 1998. Therefore, the agency argues, appellant clearly had a

reasonable suspicion of discrimination during the course of the June 29,

1998 meeting.

The record includes a document labeled "Chronology of Individual EEO

Complaint," dated October 26, 1998, which lists appellant's initial

EEO Counselor contact as August 28, 1998. However, the record also

includes an e-mail from appellant to the agency EEO Director dated

August 25, 1998, requesting a meeting with a counselor. The record

contains a copy of appellant's formal complaint, dated October 5, 1998,

which states that allegation (1) was "an obvious attempt to intimidate

me and my use of the EEO process . . . ." The formal complaint also

states that as appellant was composing a letter dated August 25, 1998,

regarding the present complaint, appellant "suddenly became aware that

this meeting (allegation (1)) was a pre-cursor of the subsequent events

(of retaliation)." The record also contains an e-mail from appellant

dated June 30, 1998, in which appellant contends that he was lured into

the June 29, 1998 meeting under the guise of meeting with a Colonel.

Appellant also notes that the "preemptive strike" counseling session was

without precedent in the agency, and involved two management officials,

including a Judge Advocate General officer, rather than appellant's

immediate supervisor.

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. United

States Postal Service, EEOC Request No. 05880247 (July 6, 1988). Thus,

the limitations period 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.

Appellant initially contacted a counselor on August 25, 1998,

approximately fifty-seven (57) days after the occurrence of allegation

(1). The Commission finds that appellant had a reasonable suspicion of

discrimination by June 30, 1998, the date of his e-mail complaining of

the manner in which the meeting was conducted. In light of appellant's

June 30, 1998 e-mail, the Commission finds appellant's argument that

he did not realize the discriminatory nature of the allegation, which

he believed to be "obvious" in his formal complaint, unpersuasive.

Accordingly, the agency's decision 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 (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. 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 5, 1999

__________________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations