0120130229
03-05-2013
Jair Moreno, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.
Jair Moreno,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Appeal No. 0120130229
Agency No. HS-CBP-22011-2012
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated September 24, 2012, dismissing a formal complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Border Patrol Agent at the Agency's Customs and Border Protection facility in Calexico, California.
On March 8, 2012, Complainant initiated contact with an EEO Counselor. Informal efforts to resolve his concerns were unsuccessful.
On May 17, 2012, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of disability when:
on January 17, 2012, he learned that management did not grant him an interview for a detail position as Liaison Officer with the U.S. Attorney's Office.
On September 24, 2012, the Agency issued a final decision dismissing the formal complaint on the grounds of untimely EEO Counselor contact. The Agency reasoned that Complainant became aware the alleged discrimination on January 17, 2012, but did not contact an EEO Counselor on that matter until March 8, 2012, beyond the 45-day time limit set by the regulations. The instant appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a)(2) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) calendar days of an alleged discriminatory event, the effective date of an alleged discriminatory personnel action, or the date that the aggrieved person knew or reasonably should have known of the discriminatory event or personnel action. The Commission had adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the 45-day limitation period is triggered.. See Ball v. USPS, EEOC Request No. 05880247 (July 6, 1989). Thus, the limitations period is not triggered until a complainant should have reasonably suspected discrimination, but before all the facts that would have supported a charge of discrimination had become apparent.
On appeal Complainant acknowledges that he learned that he was not being further considered for the detail on January 17, 2012, but did not initiate contact with an EEO counselor until 50 days later. However, he asserts, in essence, that he did not develop a reasonable suspicion of discrimination until February 8, 2012, which would make his counselor contact timely. Specifically, Complainant claims that, when he first learned of his non-selection for the detail, he was under the impression that it was because of his light duty status and a policy preventing details for individuals on light duty. However, he asserts that on February 8, 2012, an Agency official told him that there was no policy that barred the details for persons in light duty status.
Upon review, we find that Complainant's formal complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)( 2), for untimely EEO Counselor contact. The record discloses that the alleged discriminatory event occurred on January 17, 2012, and Complainant had notice of it, but did not initiate contact with an EEO Counselor until March 8, 2012, which is beyond the forty-five (45) day limitation period. We have considered Complainant's appellate argument, addressed in detail above. However, we nonetheless determine that Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. Complainant knew of his non-selection and believed it was because of his light duty status which resulted from his asserted disability. This was sufficient notice to trigger his duty to contact an EEO counselor.
Accordingly, the Agency's final decision dismissing Complainant's formal complaint for the reason stated herein is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
March 5, 2013
__________________
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 the following recipients on the date below:
Jair Moreno
1301 Medical Center Drive #121
Chula Vista , CA 91911
Fernando Gurrola
773 Wensley Ave
El Centro, CA 92243
U.S. Department of Homeland Security
Office for Civil Rights and Civil Liberties
245 Murray Ln., SW Bldg. 410
Mail Stop 0191
Washington, DC 20528
Executive Director, Office of Equal Opportunity
U.S. Customs and Border Protection
Ronald Reagan Building, Room 3.3D
1300 Pennsylvania Avenue, NW
Washington, DC 20229
__________________
Date
______________________________
Compliance and Control Division
2
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
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