01975050
01-19-1999
Eduardo C. Nocon, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Eduardo C. Nocon v. Department of the Navy
01975050
January 19, 1999
Eduardo C. Nocon, )
Appellant, )
)
v. ) Appeal No. 01975050
) Agency No. 97-68322-005
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
______________________________)
DECISION
The Commission finds the agency committed no reversible legal error in its
May 14, 1997 final decision (FAD), which dismissed appellant's February 3,
1997 formal EEO complaint for untimely EEO Counselor contact, pursuant
to 29 C.F.R. �1614.107(b), in pertinent part. We are not persuaded by
appellant's arguments in his June 12, 1997 appeal, through his attorney,
to reach a contrary conclusion.
We find, by appellant's own statements in the record, that he reasonably
suspected he had been discriminated against, on the bases of race
(Asian/Pacific Islander) and color (brown) as early as June 1992,
regarding an alleged "pay disparity" between himself and a White
co-worker, in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. �2000e et seq. Cochran v. U.S. Postal Service,
EEOC Request No. 05920399 (June 18, 1992); Perez v. Department of Health
and Human Services, EEOC Appeal No. 01950452 (May 24, 1995), request to
reconsider denied, Perez v. Department of Health and Human Services,
EEOC Request No. 05950697 (March 1, 1996). Appellant's contention in
the present case that he learned, on November 13, 1996, that a female
coworker, hired after he had been hired, had her pay adjusted, apparently
in connection with her own EEOC case, does not justify an extension of
the applicable time limitations.
We are also not persuaded by appellant's argument that he was not
aware of the applicable time limitations of 45 days as set forth at 29
C.F.R. �1614.105(a)(1).<1> We find that, at least as early as October 22,
1993, appellant expressed an awareness of the need to raise issues of
discrimination with an EEO Counselor. We further find that appellant
failed to act with due diligence or prudent regard for his rights,
waiting some four years before he finally initiated EEO counseling on
November 18, 1996. O'Dell v. Department of Health and Human Services,
EEOC Request No. 05901130 (December 27, 1990); Baldwin County Welcome
Center v. Brown, 466 U.S. 147, 151 (1984) (per curiam).
Having reviewed the entire record, the arguments on appeal, including
those not expressly addressed herein, and for the foregoing reasons, the
Commission hereby AFFIRMS the FAD's dismissal of appellant's complaint
in the present case.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
January 19, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1Prior to October 1, 1992, the effective date of 29 C.F.R. Part 1614,
the applicable time limitation was 30 days.