01A32241_r
12-29-2003
Carlos D. Lopez v. Department of Homeland Security
01A32241
December 29, 2003
.
Carlos D. Lopez,
Complainant,
v.
Tom Ridge,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01A32241
Agency No. I-02-W101
DECISION
Complainant filed an appeal with this Commission from a January 27,
2003 agency decision, dismissing his complaint pursuant to 29 C.F.R. �
1614.107(a)(2), for untimely EEO Counselor contact. The agency defined
the complaint as whether complainant was subjected to discrimination on
the bases of sex and reprisal for prior EEO activity when:
1. In May 2001, he was not selected for the position of Administrative
Support Assistant, GS-303-4 advertised under vacancy announcement
MSPII-SFR-01-BKI-02 in the San Francisco District, Bakersfield Office,
California.
In its decision, the agency stated that complainant should have suspected
discrimination in May or June 2001, and failed to act with due diligence
in contacting an EEO Counselor. The agency also noted that complainant
knew of the 45-day time limitation period, that the disputed position was
located in the same office where complainant worked, and that complainant
was not selected for a similar position in February 2000.
On appeal, complainant first argues that the agency failed to investigate
all the allegations made in his initial interview with the EEO Counselor.
Specifically, complainant stated that he had made the following
allegations:
1. Management officials failed to respond to his requests for training.
2. Complainant was called into a meeting concerning his claim of a
hostile work environment which created an atmosphere of fear, intimidation
and coercion.
3. Complainant filed for the Administrative Support position in 1998,
1999, and 2001.
4. Complainant filed for the Immigration Inspector position in May 2000.
5. Complainant was asked to undergo a medical examination for the
Immigration Inspector position.
6. Complainant's work was scrutinized by his supervisor.
7. Complainant's supervisors were making comments about his eyesight
and hearing loss.
8. Complainant's supervisors were treating him differently from other
employees.
9. Complainant's supervisors made fun of his disabilities in front of
other employees.
The record contains copies of the EEO Counselor's Report and complainant's
July 8, 2002 complaint. The complaint reflects that complainant alleged,
in addition to the non-selection, that he did not receive requested
training. The Commission finds that the agency misdefined the complaint
when it failed to identify training, herein defined as claim 2, as one of
the two claims raised in the complaint. The agency's failure to address
a claim is tantamount to a dismissal of a claim. Because the agency
did not provide a reason for dismissing this claim regarding training,
we find such a dismissal to be improper. Although on appeal complainant
raises seven other allegations that he contends were not addressed in
the agency's decision, the complaint reflects only the two claims of
non-selection and training.
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. Waiting until one has proof of discrimination before
initiating a complaint can result in untimely contact. See Bracken
v. United States Postal Service, EEOC Request No. 05900065 (March 29,
1990).
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 her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
The Commission finds that the agency's dismissal of the non-selection
claim on the grounds of untimely EEO Counselor contact was proper.
Complainant has presented no persuasive arguments or evidence warranting
an extension of the time limit. The record reveals that complainant did
not initiate EEO Counselor contact until March 21, 2002, for a selection
that occurred on May 18, 2001. Although complainant stated that he did
not learn that he was discriminated against until he received a response
to his Freedom of Information Act (FOIA) request which indicated that
the position had been filled with an applicant from outside the office,
the Commission finds that, at the latest, complainant should have
had a reasonable suspicion of discrimination by the time he requested
information from FOIA on the vacancy. In addition, the record reveals
that complainant himself indicated that he had applied for positions
before and was not selected. The Commission notes also that complainant
did not dispute the agency's assertion in its decision that the selectee
worked in complainant's office.
The agency's dismissal of the non-selection claim on the grounds of
untimely EEO contact is AFFIRMED. The agency's dismissal of the claim
regarding training is REVERSED and the claim is REMANDED for further
processing in accordance with the regulations and the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claim in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claim 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
December 29, 2003
__________________
Date