Carlos D. Lopez, Complainant,v.Tom Ridge, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity CommissionDec 29, 2003
01A32241_r (E.E.O.C. Dec. 29, 2003)

01A32241_r

12-29-2003

Carlos D. Lopez, Complainant, v. Tom Ridge, Secretary, Department of Homeland Security, Agency.


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