01a43913
04-28-2005
Gail A. Rodriguez-Reyes, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security Agency.
Gail A. Rodriguez-Reyes v. Department of Homeland Security
01A43913
April 28, 2005
.
Gail A. Rodriguez-Reyes,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security
Agency.<1>
Appeal No. 01A43913
Agency No. 04-0439
DECISION
Complainant filed an appeal with this Commission from an agency decision,
dated April 16, 2004, pertaining to her complaint of unlawful employment
discrimination in violation of the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission
accepts the appeal in accordance with 29 C.F.R. � 1614.405.
On May 24, 2002, complainant, a Senior Customs Inspector, GS-11, initiated
EEO Counselor contact. Complainant's complaint was joined with a class
complaint on August 13, 2002. On November 4, 2002, an EEOC Administrative
Judge recommended that the agency reject the class complaint. On November
26, 2002, the Department of the Treasury implemented the decision
of the AJ. Complainant's complaint became an individual complaint,
alleging that she was the victim of unlawful employment discrimination
comprised of seven claims. Because many of the instances cited in the
class complaint were not specific as to when they occurred, the agency
requested that complainant provide specific dates of the incidents,
by letter dated March 4, 2003. Thereafter, complainant indicated that
she did not keep record dates of the specific incidents contained in
the complaint because she was not aware discrimination was taking place.
In a final decision dated March 28, 2003, the agency dismiss all seven
claims for failure to state a claim.
On appeal, the Commission affirmed the agency's dismissal of four
of the seven claims. However, the Commission reversed the dismissal
of the remaining three claims, and remanded the claims to the agency
for further processing. The Commission noted that, notwithstanding
its remand of three claims, the Commission was not ruling on whether
complainant sought timely EEO counseling regarding those claims.
The Commission stated that if the agency determines that it will
dismiss the three claims, complainant should first be provided with an
opportunity to establish that the claims were timely raised with an EEO
Counselor, or that there was adequate justification for extending the
limitation period. Rodriguez-Reyes v. Department of Homeland Security,
EEOC Appeal No. 01A34116 (October 27, 2003).
On April 16, 2004, the agency issued the instant final decision regarding
the remaining three claims, noted above. The agency identified the
three claims as follows:
(1) on unspecified dates and years, complainant was denied training
and appointment to preferred positions that had promotion potential to
supervisory positions;
(2) on an unspecified date and year, complainant applied to be the Fines,
Penalties & Forfeitures (FP & F) Officer and she was not considered; and
(3) on unspecified dates and years, complainant was not selected for
supervisory positions in Brownsville, Texas; Houston, Texas; and New
Orleans, Louisiana.
The agency dismissed claims (1) - (3) for failure to state a claim.
The agency found that complainant did not provide any specificity,
and presented merely general assertions of inequitable training and
advancement opportunities, and non-selections.
The agency also dismissed claims (1) - (3) on the grounds of untimely EEO
Counselor contact. The agency determined that complainant sought EEO
counseling on May 24, 2002, regarding events that complainant stated
occurred between January 2000 and July 2002. The agency found that
complainant purportedly suspected unlawful employment discrimination
after learning that the Assistant Port Director had made comments
regarding early retirement, in March 2002. The agency concluded that a
reasonable employee, exercising due diligence, would have suspected age
discrimination following the January 2000 arrival of the new Assistant
Port Director, who allegedly provided better training and promotional
opportunities to younger employees. The agency also noted that notices
regarding the EEO process and time limits are posted throughout the
work area and, therefore, complainant had constructive knowledge of the
forty-five-day time limitation.
Finally, the agency dismissed the complaint as untimely filed.
The agency found that complainant received the Notice of Right to File a
Discrimination Complaint (hereinafter �Notice�) on or about August 15,
2002, but that she did not file her complaint until February 14, 2003.
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 Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
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 she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
On appeal, complainant challenges the agency's assertion that initial
contact was made on May 24, 2002. Instead, complainant appears to argue
that EEO Counselor contact was initiated on or about April 30, 2002,
through the EEO Complaints Manager. The Commission agrees with the
agency's argument on appeal, i.e., that even if complainant initiated
EEO Counselor contact in April 2002, instead of in May 2002, �that still
does not cure complainant's lack of timeliness and lack of specificity.�
Although the claims concern discrete events, non-selections and denied
training, complainant has failed to identify dates within forty-five
days of her initial EEO Counselor contact. Therefore, we find that the
agency properly dismissed claims (1) through (3) pursuant to 29 C.F.R. �
1614.107(a)(2).
Because of our disposition, the Commission will not consider whether
claims (1) - (3) were properly dismissed on other grounds.
Accordingly, the agency's decision to dismiss claims (1) - (3) on the
grounds of untimely EEO Counselor contact was proper and is AFFIRMED.
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
April 28, 2005
__________________
Date
1The instant complaint was originally filed against the Department
of Treasury, U.S. Customs Service. The U.S. Customs Service is
now a component of the Department of Homeland Security, Border and
Transportation Security Directorate.