01A22871_r
05-07-2003
Alberto R. Ontivero, Complainant, v. Colin L. Powell, Secretary, Department of State, Agency.
Alberto R. Ontivero v. Department of State
01A22871
May 7, 2003
.
Alberto R. Ontivero,
Complainant,
v.
Colin L. Powell,
Secretary,
Department of State,
Agency.
Appeal No. 01A22871
Agency No. 02-21
DECISION
Complainant filed an appeal with the Commission from an agency decision
dated March 28, 2002, 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,
dated February 19, 2002, complainant alleged that he was subjected to
discrimination on the bases of race, national origin, and in reprisal
for prior EEO activity when:
a) On January 8, 2000, January 13, 2000, January 27, 2000 and January
28, 2000, the General Services Officer (GSO), Assistant General Services
Officer (AGSO), and Financial Management Officer (FMO) concealed facts
concerning the problems with complainant's Coco Palm #4 residence from
the housing board;
b) On January 14, 2000, February 22, 2000, May 18 and 19, 2000, August
29, 2000, and October 13, 2000, the GSO delayed and refused to complete
repairs on complainant's residence;
a) On February 9, 2000 and February 15, 2000, the GSO inhibited
complainant from contacting landlords or realtors regarding a house to
relocate complainant's family;
b) On February 18, 2000, the GSO maliciously ordered its painting
contractors to commence painting the Annex Building wall next to
complainant's personal vehicle and a Government vehicle;
On February 22, 2000, the Deputy Chief of Mission (DCM) warned complainant
in writing not to videotape any more videos at his residence of employees
complainant alleged had fabricated and made false allegations against him;
3. On March 14, 2000, complainant's request not to be assigned to a house
with a swimming pool because it posed a danger to his family was denied;
The GSO delivered and installed a tank at complainant's residence for
water that was previously used to store diesel fuel;
5. On August 29, 2000, the GSO harassed complainant and his family
by waking him up Saturday and Sunday mornings to complete repairs in
his residence.
a) On December 20, 2001, complainant's personal vehicle was damaged
when the security guard raised the underground security barrier while his
vehicle was in the crossing stage, and the agency refused to authorize the
repairs for complainant's vehicle and provide him with a Government-owned
vehicle or a rental car provided by Intercom Security.
b) On December 23, 2001, complainant was denied copies of memos, notes
and cables regarding the false accusations submitted by the GSO office.
c) On December 23, 2001, complainant learned that the house in East
Labone which complainant had been denied because his family was too
small for a house that large was assigned to a family smaller in size.
d) On December 27, 2001 and January 10, 2002, complainant received a
letter from the Administrative Officer that contradicted the Department's
written policies, rules and procedures regarding the repair, claim and
reimbursement process for complainant's personal vehicle.
a) On January 3, 2002, a letter was found regarding a petition to
relocate complainant's family from their assigned house in Coco Palm #4
to another residence.
b) On January 11, 2002, complainant received a letter from the Ambassador
denying him authorization of a Government-owned vehicle for home-to-office
transportation or other routine matters.
c) On January 26, 2002, GSO employees failed to pick him up from the
airport after he returned from official detail;
d) On February 8, 2002, embassy employees made a copy of complainant's
personal VHS videotape without his verbal and/or written consent;
On February 19, 2002, complainant received a letter from the DCM and
GSO stating that Intercom Security Company did not cause damage to his
privately owned vehicle.
In the agency's final decision dated March 28, 2002, (regarding agency
case number 02-21), the agency dismissed claims 1 through 5, pursuant to
29 C.F.R. � 1614.107(a)(2) for untimely EEO Counselor contact. The agency
dismissed claims 6 and 7, pursuant to 29 C.F.R. � 1614.107(a)(1) for
failure to state a claim within the purview of 29 C.F.R. � 1614 because
they are not employment-related matters.
Untimely EEO contact
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 record discloses that complainant initially sought EEO counseling on
December 28, 2001. On appeal, complainant has provided no persuasive
arguments to warrant extension of the applicable time limits. We find
therefore, that claims 1 through 5 are untimely. The agency's dismissal
of claims 1 through 5 for untimely EEO contact is therefore proper.
Failure to state a claim
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,
.106(a). The Commission's federal sector case precedent has long defined
an "aggrieved employee" as one who suffers a present harm or loss with
respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
We find that overseas housing, the use of governmental vehicles, and
customary travel arrangements, are alleged conditions or privileges of
overseas employment, the denial or impairment of which is sufficient
to render complainant aggrieved. Regarding claim 6(c) we note that
complainant is alleging that he was denied a larger house, but that he did
not discover that the denial was discriminatory until December 23, 2001.
Accordingly, claims 6(a), 6(c), 7(b), and 7(c), each state a claim for
which there is a remedy. The agency's dismissal of claims 6(a), 6(c),
7(b), and 7(c) is therefore improper.
We find complainant suffered no loss, injury or adverse employment action
as a result of the incidents alleged in claims 6(b), 6(d), 7(a), 7(d),
and 7(e). These claims do not involve matters related to the terms,
conditions or privileges of complainant's employment, but rather describe
additional facts surrounding complainant's efforts to seek compensation
for losses regarding his personal property (vehicle and videotape) and
family housing, which losses are described in the remaining claims of
the complaint. Claims 6(b), 6(d), 7(a), 7(d), and 7(e), do not state
any harm independent from the other claims raised in the complaint.
Accordingly, we find the agency's dismissal of 6(b), 6(d), 7(a), 7(d),
and 7(e), pursuant to 29 C.F.R. � 1614.107(a)(1) is proper.
Accordingly, we AFFIRM the agency's dismissal of claims 1 - 5, 6(b),
6(d), 7(a), 7(d), and 7(e). We REVERSE the agency's dismissal of claims
6(a), 6(c), 7(b), and 7(c), and REMAND claims 6(a), 6(c), 7(b), and 7(c),
to the agency for further processing as directed herein.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
May 7, 2003
__________________
Date