Alberto R. Ontivero, Complainant,v.Michael Chertoff, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity CommissionMar 21, 2005
01a50796 (E.E.O.C. Mar. 21, 2005)

01a50796

03-21-2005

Alberto R. Ontivero, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.


Alberto R. Ontivero v. Department of Homeland Security

01A50796

March 21, 2005

.

Alberto R. Ontivero,

Complainant,

v.

Michael Chertoff,

Secretary,

Department of Homeland Security,

Agency.

Appeal No. 01A50796

Agency No. ICE-04-H024

DECISION

Upon review, the Commission finds that complainant's complaint was

properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), on the grounds

of untimely EEO Counselor contact.

On January 23, 2004, complainant initiated contact with an EEO Counselor

and claimed that he was subjected to discrimination on the bases of

race and in reprisal for prior EEO activity. Complainant specifically

claimed that on January 21, 2004, agency management failed to provide

the Helena, Montana Office with Time and Attendance and Payroll records

from a previous duty station concerning his Post Differential Pay (PDP)

and Law Enforcement Availability Pay (LEAP); and as a result of not

forwarding the records complainant still has outstanding pay problems.

Informal efforts to resolve the matter were not successful. On March 12,

2004, complainant filed a formal complaint wherein he identified the

date that the most recent alleged discriminatory event took place as

January 21, 2004.

In its final decision, dated September 17, 2004, the agency dismissed

the instant complaint on the grounds of untimely EEO Counselor contact.

The agency acknowledged that complainant stated in his formal complaint

that the most recent alleged discrimination took place on January 21,

2004. However, the agency found nothing in the record supporting a

finding that the agency took any action affecting complainant on that

date. The agency stated that issues of complainant's non-payment for

service while stationed in Ghana and his transfer back to the United

States arose more than a year prior to his contact with an EEO Counselor

in January 2004. The agency stated that the issue raised in the instant

complaint is a long running matter, which began on November 16, 2002.

Complainant noted that on November 16, 2002, pursuant to filing a prior

EEO complaint, complainant had provided an EEO Counselor with a chronology

of events that dated back to May 2002, relating to complainant's efforts

to regain differential and post pay to which complainant believed he

was entitled.<1>

The record in this case contains a letter from complainant to an agency

official, dated November 15 , 2002. Therein, complainant stated that the

agency knowingly and willfully refused to process requested back payments,

and that this �retaliatory action� has placed his family in financial

hardship, and prevented complainant from purchasing a home in Montana.

After a review of the record the Commission finds that complainant's

claims pertain to the transmitting of records concerning his PDP

and LEAP from his previous duty station and that it is a long running

matter dating back to November 2002. Accordingly, the Commission finds

that his contact with an EEO Counselor on January 23, 2004, is beyond

the forty-five (45) day limitation period. On appeal, complainant has

presented no persuasive arguments or evidence warranting an extension

of the time limit for initiating EEO Counselor contact.

Accordingly, the agency's final decision dismissing complainant's

complaint 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

March 21, 2005

__________________

Date

1The record in this case contains a copy of

an EEO Counselor's Report indicating that complainant contacted an EEO

Counselor in October 2002, on the issue that agency management officials

willfully and knowingly refused to forward his mail to his assigned

duty station and to his home. The record does not contain a copy

of a previously filed EEO complaint; however, on appeal, complainant

acknowledges that he had filed an �initial EEO complaint on November

16, 2002,� and that at that time, he was unaware that agency officials

�refused to surrender and to correct my pay problems.�