01a53904_r
10-17-2005
Jose M. Gutierrez, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Jose M. Gutierrez v. Department of the Navy
01A53904
October 17, 2005
.
Jose M. Gutierrez,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A53904
Agency No. DON 05-00174-003
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated March 31, 2005, dismissing his formal EEO 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.
On January 12, 2005, complainant initiated contact with the EEO office.
Informal efforts to resolve complainant's concerns were unsuccessful.
In a formal complaint filed on March 10, 2005, complainant claimed
that he was subjected to discrimination on the basis of national origin
(Hispanic) when:
on September 8, 2004, he learned that he was not selected for the position
of Division Director, Ballistic Test Division.
The agency dismissed the instant complaint on the grounds of untimely EEO
Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2). The agency
determined that complainant's initial EEO Counselor contact occurred
on January 12, 2005, which it found to be beyond the 45-day limitation
period.
On appeal, complainant, through his attorney, contends that his January
12, 2005 EEO Counselor contact was timely. Complainant states that on
either September 14 or 15, 2004, he met with the agency Deputy Director
concerning his non-selection. Complainant states that during the meeting,
he emphasized the reasons for his non-selection and mentioned that he
felt that his national origin played a factor in the non-selection.
Complainant contends that the Deputy Director "ignored the expressed EEO
concerns and advised [complainant] to contact the selecting official
to establish the reasons for non-selection." Complainant contends
that because he had concerns about a �run-around,� he contacted the
EEO Officer immediately after his meeting with the Deputy Director.
Complainant contends that while the EEO Officer informed him that he
regularly meets with the Commanding Officer concerning EEO matters, he
(the EEO Officer) recently mentioned to the Commanding Officer that
a Hispanic employee would be coming to the EEO Office concerning his
non-selection for the subject position. Complainant contends that he then
contacted the selecting official requesting a meeting but the selecting
official belatedly scheduled a meeting for October 20, 2004, to discuss
his concerns relating to the non-selection. Complainant argues that
because the meeting with the selecting official failed to resolve his
concerns, he contacted the Human Resources Office and the EEO office on
November 3, 2004, �to initiate an administrative grievance challenging
his non-selection. . .� Complainant states "it is beyond dispute
here that high Human Resources and Labor Relations officials worked
together to mislead and misdirect [complainant] in order to preclude him
from perfecting his EEO complaint within the standard 45-day complaint
initiation period." Furthermore, complainant argues that the agency had
constructive knowledge of the EEO complaint and that it should toll the
time limitation.
In response, the agency argues that complainant had, or should have had,
a reasonable suspicion of unlawful employment discrimination more than
45 days prior to his initial January 12, 2005 EEO Counselor contact.
The agency further argues that on November 3, 2004, complainant filed
a grievance concerning his non-selection. The agency argues that
complainant was seeking to overcome his untimely EEO Counselor contact
because his election to pursue the non-selection claim in the grievance
forum failed to yield the desired result. In support of its contentions,
the agency submitted copies of declarations from two management officials
stating that complainant expressed his wish not to raise his concerns
through the EEO process; and that official EEO posters outlining the
45-day limitation period were on display.
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 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.
The alleged discriminatory event occurred on September 8, 2004, but
complainant did not contact an EEO Counselor until January 12, 2005, which
is beyond the forty-five day limitation period. The record contains a
copy of the Deputy Director's declaration. Therein, the Deputy Director
stated that some time in September 2004, complainant saw her concerning
the subject non-selection. The Deputy Director further stated that she
advised complainant to speak to the selecting official to find out why
he was not selected for the position of Division Director. The Deputy
Director stated that after she questioned complainant whether he felt
that his race or national origin were factors in the non-selection,
complainant stated that he did not believe either his race or national
origin had anything to do with the non-selection. The Deputy Director
stated that complainant "advised me that he did not wish to raise his
concerns through the EEO process." Furthermore, the Deputy Director
stated that she never advised complainant to file a grievance, and that
she recommended he contact the Employee and Labor Relations Division
concerning his concerns "about certain conduct and qualification issues he
stated related to his concern about non-selection, as he made clear that
he did not believe discrimination was an issue in his non-selection."
The record also contains a copy of the EEO Specialist's declaration.
Therein, the EEO Specialist stated that official EEO notices are
posted on bulletin boards throughout the division that advise employees
of their right to file EEO complaints. In support of her contentions,
the EEO Specialist submitted a copy of the official EEO notice outlining
the 45-day limitation period and a list of bulletin boards where the
official EEO notices were posted throughout the division. Further,
the EEO Specialist stated that in addition to the official EEO notices,
management officials, including complainant, were required to participate
in EEO training. The record contains copies of complainant's FY 2002,
2003 and 2004 training reports wherein it shows that complainant attended
the EEO Refresher training sessions on August 13, 2002 and September 23,
2004, and Labor Relations Supervisory training session from March 30,
2004 to April 1, 2004, prior to the alleged discriminatory event.
The Commission has found that because the limitation period for contacting
an EEO Counselor is triggered by the reasonable suspicion standard,
waiting until one has "supporting facts" or "proof" of discrimination
before initiating a complaint can result in untimely Counselor contact.
See Bracken v. United States Postal Service, EEOC Request No. 05900065
(March 29, 1990). The Commission finds that complainant had, or should
have had, a reasonable suspicion of unlawful employment discrimination
more than 45 days prior to his initial EEO Counselor contact. Complainant
failed to provide sufficient justification for extending or tolling the
time limitation.
Accordingly, the agency's decision dismissing the instant complaint 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
October 17, 2005
__________________
Date