01A13129
08-15-2002
Hipolito B. Canilao, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Hipolito B. Canilao v. Department of the Navy
01A13129
August 15, 2002
.
Hipolito B. Canilao,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A13129
Agency No. 01-63126-011
DISMISSAL
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning 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., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The
appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleged
that he was discriminated against on the bases of race (Asian/Pacific
Islander), national origin (Filipino), color (brown), and age (DOB:
04/26/51) when he was reassigned from a GS-301-11, Resources Specialist
in Code 729100E, to a GS-301-11, Resources Specialist in Code 532400E,
effective November 20, 1999, as a result of a reduction in force (RIF).
For the following reasons, the Commission AFFIRMS the agency's final
decision dismissing the claim.
The record reveals that during the relevant time, complainant was employed
as a GS-11, Electronic Technician in Point Mugu, California (Activity).
The record reflects that on July 12, 1999, complainant was informed that
his position was scheduled for abolishment and he would be reassigned
as a result of a RIF effective November 19, 1999. Prior to the RIF,
complainant was employed as a GS-301-11, Resources Specialist.
On or about October 4, 2000, complainant received an email message
advising him to contact an EEO counselor if his position had been
abolished as result of the November 1999 RIF. The email message
referenced an article published on August 25, 2000, in a local newspaper
regarding the agency's November 1999 RIF. The record reveals that the
article alleged that the RIF had a major flaw in that minority, disabled,
and older workers were unfairly targeted.
Complainant contends that as a result of receiving the email citing the
newspaper article, he contacted the agency's EEO office on October 4,
2000, and spoke to an EEO Counselor regarding his RIF reassignment.
Subsequently, complainant filed a formal complaint on November 27, 2000.
At the conclusion of the investigation, the agency, in its FAD dated
September 26, 2001, dismissed complainant's complaint for failure to
comply with the time limits to contact an EEO counselor within 45 days
of the alleged discriminatory event. It is from this decision that
complainant appeals.
In its FAD, the agency concluded that complainant's claim was not
presented to an EEO Counselor in a timely manner. Specifically, the FAD
found that the agency posted EEO posters on official bulletin boards,
the Activity's newspaper routinely published information about the EEO
complaints process, and complainant had previously engaged in protected
activity in 1998. Complainant raises no new issues on appeal. The agency
requests that we affirm its FAD.
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely
EEO contact. The record discloses that the alleged discriminatory
event occurred on November 22, 1999, but complainant did not initiate
contact with an EEO Counselor until October 4, 2000, which is well beyond
the forty-five (45) day limitation period. We are not persuaded that
complainant's arguments regarding the newspaper article establish that
an extension of the time limit for initiating EEO contact is warranted.
See Prokopow v. Department of the Navy, EEOC Appeal 01A13001 (July 11,
2001), aff'd EEOC Request No. 05A10984 (October 30, 2001). The Commission
also finds that complainant was acquainted with the relevant time
frames because he had previously engaged in filing an EEO complaint.
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
August 15, 2002
__________________
Date