01A11856_r
03-06-2002
Daniel N. Martinez, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.
Daniel N. Martinez v. Department of the Interior
01A11856
March 6, 2002
.
Daniel N. Martinez,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01A11856
Agency No. LSM-00-09
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated December 6, 2000, 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, complainant alleged that he was subjected to discrimination
on the bases of sex, national origin, age, and reprisal for EEO activity
when:
On April 3, 2000, his duties as a collateral duty safety officer were
removed and given to a White male;
On April 26, 2000,the Acting Albuquerque Field Office Director denied
his per diem to attend a National Grants Meeting being held in Sante Fe,
New Mexico; and
On June 19, 2000, he became aware that he was not selected for the
Albuquerque Field Office Director position which was advertised and
selected in 1997.
The agency decision dismissed claims (1) and (3) for untimely EEO contact,
and claim (2) as being moot. Specifically, the agency determined
that, for claims (1) and (3), complainant's May 23, 2000 EEO Counselor
contact was more than forty-five days from the dates of the alleged
discrimination, and was therefore untimely. For claim (2) the agency
found that complainant had received his per diem payment on May 12,
2000, and thus had not been harmed.
Upon review, we find that complainant's claims (1) and (3) were properly
dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO
contact. For claim (1), the record indicates that complainant's EEO
Counselor contact was more than 45 days beyond the date of alleged
discrimination, and for claim (3), that his EEO Counselor contact was
approximately three years beyond the date he should have reasonably
suspected discrimination. On appeal, no arguments or evidence have
been presented to warrant an extension of the time limit for initiating
EEO contact.
We also find that claim (2) was properly dismissed as moot pursuant
to 29 C.F.R. � 1614.107(a)(5). As it is clear from the record that
complainant was reimbursed for the per diem amount shortly after the
alleged denial of reimbursement, we find that any harm suffered by
complainant has been eradicated by the agency's subsequent action,
and that there is no reasonable expectation that the incident is likely
to recur. See County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979);
Kuo v. Department of the Navy, EEOC Request No. 05970343 (July 10, 1998).
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 6, 2002
__________________
Date