01984642
06-28-1999
Larry Gutierrez, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Larry Gutierrez v. Department of the Air Force
01984642
June 28, 1999
Larry Gutierrez, )
Appellant, )
) Appeal No. 01984642
v. ) Agency No. KH0F98094
)
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
)
DECISION
On May 22, 1998, appellant filed a timely appeal of an April 21, 1998
final agency decision, received by him on April 27, 1998, which dismissed
one of three allegations of his complaint for failure to contact an EEO
Counselor in a timely manner.
In its final decision, the agency identified the allegations of
appellant's February 27, 1998 complaint as whether appellant was
discriminated against on the bases of national origin, sex, and in
reprisal when: (a). on October 17, 1997, appellant was arrested and
investigated by security police; (b). from October 27, 1997 to the
present, appellant was denied overtime; and (c). on November 20, 1997,
appellant was admonished by supervisors for speaking to a co-worker at a
previous work station. The agency dismissed allegation (a) for untimely
EEO contact.
Generally, an aggrieved person must initiate contact with an EEO Counselor
within 45 days of the date of the matter alleged to be discriminatory. 29
C.F.R. �1614.105(a)(1). Appellant does not argue that he was unaware
of the applicable time limits. The EEO Counselor's Report reveals, and
appellant does not dispute, that he did not initiate Counselor contact
until December 5, 1997. Therefore, his contact was beyond the 45 days
required for timely contact.
EEOC Regulation 29 C.F.R. �1614.105(a)(2) permits the time period to be
extended under certain circumstances and 29 C.F.R. �1614.604(c) provides
that the time limits in Part 1614 are subject to waiver, estoppel and
equitable tolling. The time limit may be extended if the allegation
involves a continuing violation. McGivern v. U.S. Postal Service,
EEOC Request No. 05901150 (December 28, 1990). On appeal, appellant
contends that allegation (a) constitutes a continuing violation because
he continues to suffer harm and damages because his arrest record was
not expunged.
In determining when the limitation period is triggered, the focus is
on the time of the alleged discriminatory act, not the time when the
consequences of the act become most painful. Delaware State College
v. Ricks, 449 U.S. 250, 258 (1980). Allegation (a) involves a separate
and discrete event which should have given rise to a reasonable suspicion
on the part of appellant that he was being discriminated against.
Consistent with our discussion herein, the agency's dismissal of
allegation (a) is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
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. 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 (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:
June 28, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations