Richard Z. Sandoval, Complainant,v.Ann M. Veneman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionJun 20, 2002
01A20518_r (E.E.O.C. Jun. 20, 2002)

01A20518_r

06-20-2002

Richard Z. Sandoval, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.


Richard Z. Sandoval v. Department of Agriculture

01A20518

June 20, 2002

.

Richard Z. Sandoval,

Complainant,

v.

Ann M. Veneman,

Secretary,

Department of Agriculture,

Agency.

Appeal No. 01A20518

Agency No. 980572

Hearing No. 340-A0-3684X

DECISION

Complainant filed a timely appeal with this Commission from the agency's

final action dated September 20, 2001, dismissing his complaint of

unlawful employment discrimination in violation of Title VII of the Civil

Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.

In his complaint, complainant alleged that he was subjected to

discrimination on the basis of national origin (Hispanic) when:

From April 1997 through November 9, 1997 a co-worker harassed him with

derogatory remarks based on his national origin.

The agency accepted complainant's complaint for investigation, and at

the conclusion of the investigation, complainant requested a hearing

before an EEOC Administrative Judge (AJ). On May 23, 2001, the AJ

issued a decision dismissing complainant's complaint for untimely

EEO Counselor contact. Specifically, the AJ found that complainant

initiated contact with an EEO Counselor on March 12, 1998, regarding

the most recent alleged discriminatory incident on November 9, 1997,

and that the EEO Counselor contact was therefore untimely. On September

20, 2001, the agency issued a final action fully implementing the AJ's

decision pursuant to EEOC Regulation 29 C.F.R. � 1614.110(a).

EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complainant's of

discrimination should be brought to the attention of an EEO Counselor

within forty-five days of the date of the matter alleged to be

discriminatory or, in the case of a personnel action, within forty-five

days of the effective date of the action.

The record reflects that complainant contacted an EEO Counselor 123 days

after the most recent alleged harassing incident. Complainant argues that

the time limit for contacting an EEO Counselor should be waived because

he was unaware of the relevant time periods for seeking counseling

and because he relied on an agency official he spoke with to resolve

the matter. The Commission is not persuaded by complainant's arguments

that he was not aware of the relevant time period for seeking counseling.

The record contains copies of agency documents which outline the EEO

process and the 45-day limitation period, and which were distributed to

complainant during a sexual harassment seminar on September 15, 1994.

Moreover, we find that complainant's reliance on an agency official to

resolve his concerns regarding the alleged discriminatory incident does

not excuse his untimely EEO contact. The Commission has consistently

held that the utilization of agency procedures, union grievances, and

other remedial processes does not toll the time limit for contacting an

EEO Counselor. See Ellis v. United States Postal Service, EEOC Appeal

No. 01992093 (November 29, 2000).

The Commission finds that complainant has failed to present adequate

justification for extending the limitation period beyond forty-five days.

Accordingly, the agency's final action was proper and is AFFIRMED for

the reasons set forth herein.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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 29

C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). 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 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 (S0900)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

June 20, 2002

__________________

Date