01970553
03-02-1999
Eleazar Vera, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Eleazar Vera v. Department of the Air Force
01970553
March 2, 1999
Eleazar Vera, )
Appellant, )
)
v. ) Appeal No. 01970553
) Agency No. KH0F900116000
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
______________________________)
DECISION
On October 21, 1996, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) dated September 27, 1996, pertaining
to his complaint of unlawful employment discrimination in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e
et seq.
A review of the record indicates that appellant initially filed a
formal complaint on December 12, 1989, alleging that he was subjected
to discrimination on the bases of national origin (Mexican-American)
and in reprisal for prior EEO activity. The agency identified only one
issue in that complaint and ultimately issued a FAD dismissing it for
failing to accept a certified offer of full relief. On January 30, 1992,
appellant filed an appeal of the dismissal. The Commission vacated the
decision and remanded the complaint upon finding that the agency failed to
follow the proper procedural requirements for an offer of full relief.
Furthermore, the Commission noted that appellant raised several new
allegations, including the issue of his denial of one of two GM-14
positions in 1991, and advised appellant that new allegations must be
referred to the agency for EEO counseling. Eleazar v. Department of the
Air Force, EEOC Appeal No. 01921486 (August 20, 1992). Pursuant to the
Commission's Order, on May 25, 1993, a meeting was held with appellant
for the purpose of clarifying the issues to be investigated. On the
same date, appellant submitted an addendum to his original complaint
which included, among the additional allegations of discrimination
raised, that, "Sometime in [September - November 1989] (approximately)
[two of appellant's co-workers] were detailed/or temporary (sic) promoted
to higher graded positions in [appellant's division] while [appellant]
was not considered." (First parenthetical in original)
The record further discloses that the agency conducted a supplemental
investigation concerning the additional allegations on December 6,
1993, and issued a no cause recommendation. On December 11, 1993,
appellant requested a hearing before an Administrative Judge (AJ).
During the hearing, held on May 12, 1994, appellant asserted that a new
allegation, his non-selection for two available GM-14 positions in April
1991 (the non-selection issue), should be addressed at the hearing.
The AJ remanded the complaint to the agency to conduct a supplemental
investigation concerning the non-selection issue.
On September 27, 1996, the agency issued a FAD dismissing the
non-selection issue pursuant to EEOC Regulation 29 U.S.C. �1614.107(b),
for failure to initiate contact with an EEO Counselor in a timely
manner. Specifically, the agency determined that appellant raised the
non-selection issue with the agency more than forty-five days after
the selections were made, and, therefore, it was untimely. Further,
noting that the issues of the complaint were delineated in the first
and second investigative reports, dated August 27, 1990, and December 6,
1993, and in the agency's requests for an EEOC hearing dated January 5,
1993, and January 12, 1994, the agency concluded that appellant failed
to timely raise the non-selection issue.
A careful review of the record shows that the first time appellant
mentioned the non-selection issue appears to have been in his prior
appeal filed on January 30, 1992.
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 Ball v. USPS,
EEOC Request No. 05880247 (July 6, 1988). Thus, the limitations period
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
In the instant case we find that appellant failed to raise the
non-selection issue until beyond the forty-five day limitation period.
The first time appellant appears to have referred to his April 1991
non-selection for either of two GM-14 positions was in his January
30, 1992 appeal to the Commission. As this appeal was filed more than
forty-five days after the promotions at issue, we find that this issue was
untimely raised. Moreover, in the addendum to his formal complaint which
appellant submitted more than two years after the selections were made,
he only identified his co-workers' details and temporary promotions
(occurring sometime between September and November 1989). At no time
did appellant specifically raise the non-selection issue.
Accordingly, we find that the agency's decision to dismiss the
non-selection issue was proper, and, therefore, it is AFFIRMED for the
reasons set forth herein.
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. �1614.604(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. 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 filed your appeal with the
Commission. 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. 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:
Mar 2, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations