Tyrone Rodriguez, Sr., Complainant,v.Janice R. Lachance, Director, Office of Personnel Management, Agency.

Equal Employment Opportunity CommissionDec 22, 2000
01991551 (E.E.O.C. Dec. 22, 2000)

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.