0120102469
09-23-2010
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.
Appeal No. 0120102469
Agency No. ARCCAD10FEB00745
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated April 12, 2010, dismissing his 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
Complainant, an Aircraft Electrician, contacted an EEO Counselor on February 25, 2010. When the matter was not resolved informally, Complainant filed a formal complaint. In his formal complaint dated April 6, 2010, Complainant indicated he was subjected to discrimination on the bases of disability (injury on or about November 8, 2002) and reprisal for prior protected 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.
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 dismissed claims (1), (2), (4), (5) and (6) pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely EEO Counselor contact noting that Complainant's contact on February 25, 2010, was well beyond the forty-five day time period. The Agency then dismissed claims (3) and (7) noting that Complainant has requested a reasonable accommodation that would allow him to perform the clerk position. The Agency stated that the request is still pending with the Agency. The Agency indicated that once the Agency has responded to the request, Complainant may raise that matter with the EEO Office as a new claim of discrimination. As such, the Agency dismissed claims (3) and (7). Complainant appealed requesting that the Commission reverse the Agency's final decision.
ANALYSIS AND FINDINGS
Upon review of the record, we find the complaint at hand has been treated in a piecemeal fashion. The events listed as claims (1) - (7) are all part of 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. The rest of the "claims" are simply evidence in support to this claim of discrimination. Therefore, we shall review the Agency's dismissal of Complainant's claim of discrimination based on his disability and prior protected activity when he signed a job reassignment on September 28, 2009, to the position of clerk, which became effective on December 6, 2009.
EEOC Regulation 29 C.F.R. �1614.107(a)(2) states that the agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in �1614.105, �1614.106 and �1614.204(c), unless the agency extends the time limits in accordance with �1614.604(c).
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. EEOC Regulation 29 C.F.R. �1614.105(a)(2) allows the agency or the Commission to extend the time limit if the complainant can establish that complainant was not aware of the time limit, that complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence complainant was prevented by circumstances beyond his control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the agency or Commission.
Upon review of the record, we find that the Agency's dismissal of the complaint was appropriate. We note that Complainant was reassigned effective December 6, 2009. Complainant did not contact the EEO Counselor until February 25, 2010, well beyond the 45 day time limit. On appeal, Complainant asserted that he did not become aware of the alleged discrimination until April 2, 2010, when he reviewed his personnel file and found a note indicating that the reassignment was a "reasonable accommodation." We 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. The Agency also 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 chose to raise a new claim of denial of reasonable accommodation at that time. However, we find that the Agency's dismissal of the complaint pursuant to 29 C.F.R. � 1614.107(a)(2) was appropriate.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision dismissing the complaint.
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
September 23, 2010
__________________
Date
2
0120102469
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120102469