01990560
12-28-2000
Fermin I. Henriquez, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Fermin I. Henriquez v. Department of Agriculture
01990560
December 28, 2000
.
Fermin I. Henriquez,
Complainant,
v.
Daniel R. Glickman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01990560
Agency No. 980383
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated September 23, 1998, 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.
The agency characterized his complaint as alleging that he was subjected
to discrimination on the bases of national origin (Hispanic), sex (male),
and reprisal for prior EEO activity when it denied him a $1000 cash
award for meritorious performance in fiscal years 1993 and 1996.
The agency's decision dismissed complainant's claim for untimely EEO
Counselor contact, and alternatively, for raising the same matter
as that raised in a negotiated grievance procedure. Specifically,
the agency found that complainant's October 29, 1997 EEO Counselor
contact was more than forty-five days beyond the July 7, 1997 date he
became aware that he was denied the fiscal year 1996 cash award, and
was therefore untimely. Additionally, the agency also determined that
on July 22, 1997, complainant contacted the union to pursue the matter
under a negotiated grievance procedure.
The record indicates that in a November 14, 1997 letter to the EEO
Counselor, complainant stated that on or around July 7, 1997, he �became
aware that [he] was not going to receive a performance award.� The
record also indicates that after contacting the union on July 22, 1997,
union representatives met with agency officials regarding complainant's
award, and that sometime between October 22 and October 29, 1997, he
made efforts to contact an EEO Counselor.
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 days of the date of
the matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five 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 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.
EEOC Regulation 29 C.F.R. � 1614.105(a)(2) provides that the agency or
the Commission shall extend the time limits when the individual shows
that she was not notified of the time limits and was not otherwise aware
of them, that she did not know and reasonably should not have known that
the discriminatory matter or personnel action occurred, that despite due
diligence she 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.
Upon review of the record, we find that the agency has properly dismissed
complainant's complaint. Although it is unclear from the record exactly
when complainant had knowledge he would not receive a 1993 performance
award, the record clearly shows that complainant was aware on July 7,
1997, that he was not going to receive a performance award for either
1993 or 1996. As complainant's initial EEO counselor contact occurred
no earlier than October 22, 1997, more than forty-five days after the
July 7, 1997 date complainant knew of the alleged discriminatory action,
it was clearly untimely. Moreover, the record shows that complainant
first contacted the union to help him receive his performance awards
before contacting an EEO Counselor, and has otherwise offered no evidence
to indicate that the time limit for his claim should be extended.
Consequently, we find that the agency properly dismissed complainant�s
complaint for untimely EEO Counselor contact.<1>
Accordingly, the agency's decision dismissing complainant's complaint
is AFFIRMED
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 28, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1As we have affirmed the agency's dismissal for untimely EEO Counselor
contact, we do not address the agency's alternative basis for dismissal.