01a55281
12-22-2005
Edward Alvarez, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Edward Alvarez,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A55281
Agency No. ARCCAD05FEB06982
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision (FAD) dated June 29, 2005, 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 national origin (Hispanic) and reprisal
for prior protected EEO activity under Title VII of the Civil Rights
Act of 1964 when:
1. in March 2004, his supervisor failed to give him a performance
appraisal;
2. on October 23, 2004, the division chief allegedly lied under oath at
an OCI fact finding conference stating that complainant had been given
a performance appraisal for 2003; and
3. In November/December 2004, complainant received a performance appraisal
with a rating of "2."
The agency dismissed the complaint for untimely EEO contact pursuant to
29 C.F.R. � 1614.107 (a)(2) and for raising the same claim in a prior
EEO complaint pursuant to 29 C.F.R. � 1614.107 (a)(1). The FAD did
not provide any other information regarding the decision to dismiss the
complaint.
Complainant filed his appeal stating that he contacted the EEO counselor
in a timely manner. He provided a copy of an e-mail from his supervisor
indicating that he would work on the 2004 appraisal during the week of
January 14, 2005. Therefore, complainant asserted that his February
24, 2005 EEO contact was timely. In response to the appeal, the agency
indicated that agency documentation showed that complainant received his
appraisal on November 17, 2004. Therefore, the EEO counselor contact
was beyond the forty-five day time period. Further, as to the 2003
appraisal, the agency asserted that complainant raised that matter in
a prior EEO complaint.
EEOC Regulation 29 C.F.R. �1614.107(b) states that the agency shall
dismiss a complaint or a portion of a complaint that fails to comply
with the applicable time limits contained in �1614.105, �1614.106 and
�1614.204(c), unless the agency extends the time limits in accordance
with �1614.604(c).
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved
person must initiate contact with an EEO Counselor within 45 days of
the date of the matter alleged to be discriminatory or, in the case of
a personnel action, within forty-five calendar days of the effective
date of the action. EEOC Regulation 29 C.F.R. �1614.105(a)(2) allows
the agency or the Commission to extend the time limit if the appellant
can establish that appellant was not aware of the time limit, that
appellant did not know and reasonably should not have known that the
discriminatory matter or personnel action occurred, that despite due
diligence appellant was prevented by circumstances beyond his control
from contacting the EEO Counselor within the time limit, or for other
reasons considered sufficient by the agency or Commission.
The record indicates that complainant first contacted the EEO office
on February 24, 2005. Clearly this was well beyond the incidents
alleged to be discriminatory by complainant in claims (1) and (2).
With regard to claim (3), on appeal complainant asserts that he did not
receive his 2004 appraisal until January 2005. However, the evidence of
record includes a copy of an appraisal signed by the supervisor and the
division chief on November 17, 2004. There is a notation that complainant
refused to sign the appraisal for 2004 where he received a "2." In the
counselor's report, the counselor reported that complainant stated he
received the appraisal raised in claim (3) during November/December 2004.
Even assuming complainant received the appraisal some time in December
2004, we find that his February 24, 2005 EEO contact was beyond the
forty-five day time period. Complainant has provided no justification
to extend the time limit. Therefore, we find that the dismissal pursuant
to 29 C.F.R. � 1614.107 (a)(2) was appropriate.
Accordingly, we affirm the agency's FAD.
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
December 22, 2005
__________________
Date
4
01A55281
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036