0120102154
09-07-2010
Jairo N. Vargas, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (Customs and Border Protection), Agency.
Jairo N. Vargas,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
(Customs and Border Protection),
Agency.
Appeal No. 0120102154
Hearing No. 540201000016X
Agency No. HS09CBP004285
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated April 1, 2010, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. Upon review, the Commission finds that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2) on the grounds of untimely EEO Counselor contact.
ISSUE PRESENTED
Whether the EEOC Administrative Judge (AJ) was correct in dismissing Complainant's complaint for untimely EEO counselor contact.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Boarder Patrol Agent Intern, GS-7, at the Agency's Wellton Station in Yuma, Arizona. On May 28, 2008, Complainant was terminated from his position. On June 10, 2008, Complainant contacted EEO Counselor RF reporting that he had been terminated. After Complainant's counselor contact, neither the counselor nor Complainant took any action to begin the process of filing an EEO complaint. Also, on June 10, 2008, Counselor RF noted in the Contact Summary Sheet that he informed Complainant of the 45-day requirement and notified him that he would not be taking any action unless Complainant notified him of his intent to file an EEO Complaint. Complainant did not contact Counselor RF again until March 9, 2009. At that time, Complainant indicated to Counselor RF that he wised to file an EEO complaint.
On June 2, 2009, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected him to discrimination on the bases of race (Hispanic), national origin (Mexican-American), and disability when:
on May 28, 2008, management terminated his employment during his probationary period.
Following an investigation by the Agency, Complainant requested a hearing before an AJ. Following a motion to dismiss by the Agency, the AJ dismissed Complainant's complaint on the grounds of untimely EEO counselor contact. Specifically, the AJ found that Complainant had not demonstrated that he intended to pursue an EEO complaint in June 2008. In this regard, the AJ noted that Complainant stated that he contacted an EEO counselor on June 10, 2008, but did not follow up with the counselor until May 9, 2009. The AJ also found that Complainant was aware that the EEO counselor was not going to take action during this time period.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that he contacted the Counselor RF on or before June 10, 2008, with an intent to pursue EEO counseling. In this regard, Complainant contends that he told counselor RF that he was wanted to file an EEO complaint and the counselor responded that Complainant did not have an EEO violation and told him that "he could not do anything about it." Further, Complainant contends that Counselor RF was supposed to send him a package that he never received. Complainant further contends that he did not follow up with Counselor RF because of depression and the medications he was prescribed inhibited him from doing so.
ANAYLSIS AND FINDINGS
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 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 Regulations provide that the Agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the Agency or the Commission.
Whether the AJ's dismissal in this case was appropriate hinges on whether or not Complainant's June 10, 2008 contact with Counselor RF was made with the intent to pursue the EEO complaint process. Although Complainant contacted the Agency's EEO office to express his concern about his termination on June 10, 2008, we find that this contact did not constitute an initial EEO Counselor contact for the purposes of 29 C.F.R. �1614. The Commission has held that, in order to establish EEO Counselor contact, an individual must contact an Agency official logically connected to the EEO process and exhibit an intent to begin the EEO process. Allen v. USPS, EEOC Request No. 05950933 (July 8, 1996).
Here, we concur with the AJ that Complainant's contact with the EEO office in June 10, 2008, was insufficient to constitute EEO Counselor contact and initiation of the EEO process because there is no indication that Complainant exhibited the requisite intent to pursue the process. The record shows that on the June 10, 2008 Contact Summary Sheet, Counselor RF indicated:
[Complainant] acknowledged that he did not believe discrimination played a role in his termination other that what was mentioned above. He said that he would review the EEOC website for further information on the EEO Protected Classes. I notified him of the 45-day requirement and notified him that at this point I would be taking no further action unless he notified me otherwise of his intent to file an EEO Complaint. A letter was sent June 10, 2008, to his home address to memorialize our conversation.
Investigative File, Tab G-5, pp. 372-373.
We note that, on appeal, Complainant contends that he contacted Counselor RF on June 10, 2008, with the intention of filing an EEO complaint, but that Counselor RF indicated that he could not help. However, it is undisputed that counselor RF did not take any action and that Complainant did not follow up with counselor RF until March 9, 2009, which was 8 months after his initial contact. We find that Complainant's delay in following up with Counselor RF indicates that he did not intend to begin the EEO process until that time. Consequently, as Complainant's March 9, 2009, EEO counselor contact occurred more than 45 days after his May 28, 2008 termination, it was untimely.1
CONCLUSION
Accordingly, the Agency's final decision adopting the AJ's decision dismissing Complainant's complaint 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
___9/7/10_______________
Date
1 On appeal, Complainant contends that medication and depression inhibited him, but he failed to provide sufficient evidence that indicates that he was so physically or emotionally incapacitated as to be unable to make timely EEO Counselor contact. See Crear v. United States Postal Serv., EEOC Request No. 05920700 (October 29, 1992); Zelmer v. United States Postal Serv., EEOC Request No. 05890164 (March 8, 1989).
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0120102154
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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