01a50723
01-27-2005
Noel Perez, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Noel Perez v. Department of Veterans Affairs
01A50723
January 27, 2005
.
Noel Perez,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A50723
Agency No. 200N-0654-2004100895
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2).<1> In his
complaint, complainant alleged that he was subjected to discrimination
on the bases of race (Asian/Pacific Islander) and national origin
(Philippines) when:
he received a letter of counseling dated September 15, 2003, and a notice
of warning dated September 17, 2003; and,
was removed from his position on December 31, 2003.
The agency dismissed issue 1 for failing to timely contact an EEO
counselor and issue 2 for failing to file a formal complaint within 15
calendar days of receipt of the Notice of Final Interview.
The record reveals that complainant initially contacted an agency
EEO manager raising issues of discrimination on September 25, 2003.
Specifically, complainant stated that he was the victim of discrimination
and cited the letter of counseling and notice of warning among other
issues. The EEO counselor's report indicates that complainant initially
met with an EEO counselor regarding issue 1 on December 12, 2003.
On appeal, complainant's representative stated that she was often
incapable of timely responses due to exposure to environmental
contaminants.
EEOC regulations state that an aggrieved individual must contact an EEO
counselor within 45 days of the alleged discriminatory occurrence. 29
C.F.R. � 1614.105(a)(1). 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. This time limit may
be extended, however, if the individual was unaware of the time limits,
if he did not know or could not reasonably have known that discrimination
had occurred, if he was prevented from timely contacting a counselor by
circumstances beyond his control, or for any other reasons considered
sufficient by the Commission. 29 C.F.R. � 1614.105(a)(2). In addition,
the 45-day time limit is subject to waiver, estoppel, and equitable
tolling. 29 C.F.R. � 1614.604(c). If complainant fails to contact a
counselor within the 45-day time limit, and does not present arguments
or evidence that would support an extension of this time limit, then
the complaint may be dismissed pursuant to 29 C.F.R. � 1614.107(a)(2).
With respect to issue 1, we find that complainant had a reasonable
suspicion of discrimination on September 15 and 17, 2003, when he was
given a notice of counseling and notice of warning. We find further that,
although complainant contacted the EEO Manager by letter on September
25, 2003, and later spoke with the EEO Manager, an individual logically
connected to the EEO process, he did not exhibit an intent to pursue the
EEO complaint process at that time. 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. See Allen v. United States Postal Service,
EEOC Request No. 05950933 (July 9, 1996). The Commission finds that
complainant did not contact the EEO Manager again and did not initiate
EEO counseling until December 12, 2003, which was beyond the requisite
time period. Complainant's representative failed to submit any medical
documentation showing that she was unable to contact the EEO counselor
between the time she contacted the EEO Manager on September 25, 2003,
and when she contacted the EEO Counselor on December 12, 2003. We find
that complainant and his representative have been unable to show that he
or his representative were prevented from timely contacting a counselor
by circumstances beyond their control.
The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in
pertinent part, that an agency shall dismiss a complaint which fails to
comply with the applicable time limits contained in 29 C.F.R. � 1614.106,
which, in turn, requires the filing of a formal complaint within fifteen
(15) days of receiving a notice of the right to do so.
With respect to issue 2, complainant received his notice of right to
file on February 2, 2004, and his formal complaint was not filed until
February 26, 2004, which is beyond the fifteen (15) day limitation
period. On appeal, complainant has not offered adequate justification to
warrant an extension of the time limit for filing the complaint nor has he
shown that he or his representative were prevented from timely filing the
formal complaint by circumstances beyond their control. Accordingly, the
agency's final decision dismissing complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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:
January 27, 2005
______________________________ __________________
Carlton M. Hadden, Director Date
Office of Federal Operations
1 The agency contends that complainant
did not timely file the instant appeal and stated that it attached two
U. S. Postal Service Track and Confirm sheets showing when complainant
received the FAD. However, the agency appeal brief does not contain
any such attachment. Because the agency failed to supply a copy of the
certified mail receipt or any other material capable of establishing
the date that complainant received the final decision, the Commission
presumes that the appeal was filed within thirty (30) calendar days of
the date of complainant's receipt of the final decision.