0520110101
01-06-2011
Mario Chapa, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Mario Chapa,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Request No. 0520110101
Appeal No. 0120102469
Agency No. ARCCAD10FEB00745
DENIAL
Complainant timely requested reconsideration of the decision in Mario Chapa v. Dep't of the Army, EEOC Appeal No. 0120102469 (Sept. 23, 2010). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
The record reflects the following chronology of events. Complainant, an Aircraft Electrician, contacted an EEO Counselor on February 25, 2010. Informal efforts to resolve his concerns were unsuccessful. Complainant filed a formal complaint alleging that he was subjected to unlawful discrimination on the bases of disability and in reprisal for prior protected EEO activity when:
1) Based on his disability, Complainant was threatened with termination if he did not accept the permanent job reassignment as a clerk. Complainant accepted the position on September 28, 2009;
2) Effective December 6, 2009, based on his disability when Complainant was permanently reassigned as a clerk which Complainant believed was not within his limitations;
3) Based on his disability, Complainant indicated that the Agency failed to follow its own policy requiring it to provide Complainant with a reasonable accommodation;
4) Complainant was subjected to retaliation when he was threatened with termination if he did not accept the permanent job assignment as a clerk;
5) Complainant was subjected to retaliation when he was transferred to the position of Clerk;
6) Complainant was subjected to retaliation when he was transferred to the position of Clerk which involved a pay decrease and lost overtime; and
7) Based on his disability and prior protected activity, the Agency failed to follow its own policy requiring it to provide Complainant with a reasonable accommodation.
The Agency, in its final decision, dismissed the complaint on procedural grounds. Complainant filed an appeal with the Commission.
In its prior decision, the Commission found that the Agency treated the complaint in a piecemeal fashion. Specifically, the Commission stated "[t]he events listed as claims (1)-(7) are all part of a claim of discrimination on the bases of disability and in retaliation for prior protected activity when, on September 28, 2009, Complainant was allegedly forced to accept a job reassignment to a clerk position which became effective December 6, 2009."1 The Commission affirmed the Agency's dismissal on the grounds of untimely EEO Counselor contact. The Commission noted that the reassignment was effective December 6, 2009, but that Complainant did not contact an EEO Counselor until February 25, 2010, beyond the applicable time limit.
Complainant, in his request, asserts that the Commission's prior decision affirming the Agency's dismissal of his complaint is improper. Specifically, Complainant, through his attorney, states "[he] reviewed his personnel file on April 2, 2010 and at that time, for the first time, he realized that his placement in the Mock-up Room was a reasonable accommodation under the Agency's policy. This is the first time that [Complainant] realized that he did not have to move from the Mock-up Room position, but that he had a right to remain there permanently because the position was a reasonable accommodation."
In response, the Agency asserts that we should deny Complainant's request because it fails to meet the criteria for granting a request for reconsideration.
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. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 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.
Upon review of the record, we find that the Commission's prior decision properly affirmed the Agency's dismissal on the grounds of untimely EEO Counselor contact. Complainant failed to contact an EEO Counselor within 45 days of the effective date of his reassignment. We remind Complainant that a "request for reconsideration is not a second appeal to the Commission." Equal Employment Opportunity Management Directive 110 for 29 C.F.R. Part 1614 (Nov. 9, 1999), Chapter 9. Our prior decision properly addressed Complainant's assertion that he did not become aware of the alleged discrimination until April 2, 2010. Specifically, the Commission stated "[w]e are not persuaded by Complainant's statement for he contacted the EEO Counselor prior to discovering the "reasonable accommodation" in his file. Further, he was aware of the reassignment on December 6, 2009, and should have made contact within 45 days of that event."
After reconsidering the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the Commission to deny the request. The decision in EEOC Appeal No. 0120102469 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
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 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.
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
January 6, 2011
__________________
Date
1The Commission in its prior decision noted that "the Agency indicated that Complainant made a request for a reasonable accommodation within his clerk position, which is still being processed. Once the Agency makes its decision regarding Complainant's request, he may choose to raise a new claim of denial of reasonable accommodation at that time."
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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