05980264
08-19-1999
Johnny Rivera, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency,
Johnny Rivera v. Department of the Navy
05980264
August 19, 1999
Johnny Rivera, )
Appellant, )
)
v. ) Request No. 05980264
) Appeal No. 01973170
Richard J. Danzig, ) Agency No. 97-00251-034
Secretary, )
Department of the Navy, )
Agency, )
)
DECISION ON REQUEST FOR RECONSIDERATION
On January 16, 1998, the agency timely initiated a request to the
Equal Employment Opportunity Commission to reconsider the decision in
Johnny Rivera v. John H. Dalton, Secretary, Department of the Navy, EEOC
Appeal No. 01973170 (December 12, 1997), which it received on December
19, 1997. EEOC regulations provide that the Commission may, in its
discretion, reconsider any previous decision. 29 C.F.R. �1614.407(a).
The party requesting reconsideration must submit written argument or
evidence that tends to establish one or more of the three criteria
prescribed by 29 C.F.R. �1614.407(c): that new and material evidence
was available that was not available when the previous decision was
issued, 29 C.F.R. � 1614.407(c)(1); that the previous decision involved
an erroneous interpretation of law or regulation, or material fact,
or a misapplication of established policy, 29 C.F.R. � 1614.407(c)(2);
or that the decision is of such exceptional nature as to have substantial
precedential effects, 29 C.F.R. � 1614.407(c)(3). For the reasons stated
below, the Commission grants the agency's request.
The issue presented is whether the agency properly dismissed appellant's
complaint for failure to timely contact an EEO counselor. Appellant
filed Complaint No. 97-00251-034, in which he alleged that the agency
discriminated against him on the bases of national origin (Hispanic),
and physical disability (wrist fracture) by terminating him from his
position as a sandblaster, effective March 2, 1996. The agency dismissed
appellant's complaint for untimely counselor contact after determining
that appellant did not initiate counseling until December 10, 1996.
The previous decision determined that appellant did not have actual
or constructive notice of the 45-day time limit for contacting an EEO
counselor, and consequently ordered a supplemental investigation into
this issue.
Commission regulations require complainants who believe that they had
been discriminated against to contact an EEO counselor within 45 days
of the alleged discriminatory incident. 29 C.F.R. � 1614.105(a)(1).
In dismissing a complaint for failure to timely contact an EEO counselor,
the burden of proof is on the agency to show that appellant did not
initiate contact with an EEO counselor until after the expiration of
the 45-day time limit. Simmons v. Department of the Treasury, EEOC
Request No. 05970351 (February 26, 1999). In this case, the counselor's
report indicates that the incident occurred on March 1, 1996, but that
appellant did not contact an EEO counselor until December 10, 1996,
some nine months later. Agency File (AF), Tab 3-5, p. 2.
The previous decision found that the agency failed to establish that
appellant had notice of the 45-day time limit at the time of the incident.
We disagree. The agency file contains an EEO information form dated
December 1, 1992, and signed by appellant. Appellant had contacted
a counselor on December 1, 1992, in connection with a harassment
incident that occurred on November 4, 1992. The form clearly states
that contact with a counselor must be within 45 days of the alleged
discriminatory incident. AF, Enclosure (2). In support of its
request for reconsideration, the agency presents archived records
indicating that appellant took training in sexual harassment in August
1992, January 1994, and May 1995. Request for Reconsideration (RFR),
attachment (1). A document entitled "Privacy Act Statement" that has
appellant's signature has the time limit stated on the reverse side. Id.
The materials distributed in the 1995 training class explicitly set forth
the time 45-day time limit for contacting a counselor. RFR attachment
(2), document entitled "Navshipydpugetinst 12713.8B (June 13, 1994),
pp. 3, 5. We find that, by presenting these documents, the agency
satisfied its burden of proving that appellant had actual knowledge of
the 45-day time limit for contacting an EEO counselor, and that he was
aware of this time limit since December 1992.
The question remains as to when appellant began to have a reasonable
suspicion of discrimination. The 45-day time period begins to run as soon
as the complainant reasonably suspects discrimination. Peets v. United
States Postal Service, EEOC Request No. 05950725 (March 28, 1996). The
counselor's report states:
[Appellant] stated that his reason for not filing his complaint earlier
(within the 45 days), was that he just found out in September 1996,
that an employee that used to work here was brought back after filing
an EEO complaint. [Appellant] had been trying to get in touch with him
ever since and [appellant] finally talked with him on 8 December 1996,
the employee told him to go ahead and file an EEO complaint
AF, Tab 3-5, p. 2. The counselor's report establishes that appellant
began to suspect discrimination in September 1996. Once he had such
a suspicion, he should not have waited until all the supporting facts
became apparent before contacting a counselor. Bracken v. U.S. Postal
Service, EEOC Request No. 05900065 (March 29, 1990). Assuming that
appellant became aware of the other employee's situation on September 30,
1996, he would have had until November 14, 1996, to contact a counselor.
He did not do so until December 10, 1996, almost one month later.
Accordingly, we find that the agency met its burden of proving that
appellant's December 10, 1996 initial contact with the counselor was
untimely.
After a review of the agency's request to reconsider, the previous
decision, and the entire record, the Commission finds that the
agency's request meets the criteria of 29 C.F.R. �1614.407(c). It is
therefore the decision of the Commission to grant the agency's request.
The decision of the Commission in EEOC Appeal No 01973170, remanding
Complaint No. 97-00251-034 for a supplemental investigation is reversed,
and the order therein rescinded. The agency's final decision dismissing
Complaint No. 97-00251-034 for untimely contact with an EEO counselor
is affirmed. There is no further right of administrative appeal from a
decision of the Commission on request for reconsideration.
RIGHT TO FILE A CIVIL ACTION (P0993)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court.
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. 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.
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:
August 19, 1999
_______________ ______________________________
Date Frances M. Hart
Executive Officer
Executive Secretariat