01991551
12-22-2000
Tyrone Rodriguez, Sr., Complainant, v. Janice R. Lachance, Director, Office of Personnel Management, Agency.
Tyrone Rodriguez, Sr. v. Office of Personnel Management
01991551
December 22, 2000
.
Tyrone Rodriguez, Sr.,
Complainant,
v.
Janice R. Lachance,
Director,
Office of Personnel Management,
Agency.
Appeal No. 01991551
Agency No. 98-41
DECISION
Upon review, the Commission finds that the complaint was properly
dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO
Counselor contact.<1>
The record shows that complainant sought EEO counseling on July 7,
1998, claiming that he had been discriminated against on the bases of
disability and reprisal when by letter dated March 9, 1998, he was
notified that he was not selected for the position of Border Patrol
Agent with the Immigration and Naturalization Service (INS).
Subsequently, complainant filed a formal complaint claiming that he
had been discriminated against on the bases of national origin, and
disability when on March 9, 1998, he received a rejection letter from
the agency stating that he had not been recommended for a Border Patrol
Agent position. The record shows that by letter dated March 21, 1998,
complainant asked the agency to provide him with documentation, and the
names of the officials in INS and the agency that were responsible for
not hiring him.
The agency issued a final decision dismissing the complaint on the grounds
of untimely EEO Counselor contact after finding that complainant failed
to comply with the 45-day time limit.
On appeal, complainant acknowledges that he did not contact an EEO
Counselor in a timely fashion and asserts that it is not his fault because
the agency �is extremely difficult to get a hold of� and his delay was
�due mainly to [agency officials] making themselves inaccessible�.
The record discloses that the alleged discriminatory event occurred on
March 9, 1998. Complainant claims that he was unable to contact an
EEO Counselor in a timely fashion because of the manner in which the
agency conducts business and its lack of accessibility. However, the
record further shows that, despite complainant's assertion regarding the
agency's purported lack of accessibility, complainant in fact initiated
correspondence with the agency on March 21, 1998, when requesting
information relating to the matter that is the subject of his complaint.
We are unpersuaded that, given the facts of this case, complainant
had insufficient access to the agency to initiate EEO Counselor contact
within 45 days of the date that the alleged discriminatory event occurred
in March 1998. Accordingly, the agency's final decision dismissing
complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
December 22, 2000
__________________
Date
1On 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.