01991212
11-05-1999
Randy A. Mendoza, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Randy A. Mendoza v. Department of the Army
01991212
November 5, 1999
Randy A. Mendoza, )
Appellant, )
)
v. ) Appeal No. 01991212
) Agency No. AD7RFO981010070
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
______________________________)
DECISION
On November 24, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) dated October 23, 1998, pertaining
to his complaint of unlawful employment discrimination in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et
seq., �501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791
et seq., and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. �621 et seq. In his complaint, appellant alleged
that he was subjected to discrimination on the bases of race (Pacific
Islander), national origin (Philippines), physical disability, age,
and in reprisal for prior EEO activity when:
On June 29, 1998, two members of management met with appellant and
instructed him not to engage in disruptive or abusive behavior in
appellant's personal conduct toward others in relation to the matters
contained in appellant's previous EEO complaints; this meeting supposedly
was to be conducted by a Colonel (third member of management) in response
to an inquiry from appellant's Congressional Representative;
On July 14, 1998, management officials issued appellant a reprimand
based on hearsay from a co-worker who stated that appellant called the
supervisor a "M****R F****R;"
On July 14, 1998, management officials denied appellant union
representation prior to the issuance of the letter of reprimand;
On July 15, 1998, a supervisor failed to ensure that another agency
official provide accurate, up-to-date medical information to the
attending medical physician regarding appellant's Office of Workers'
Compensation Program (OWCP) claim; and
On August 5, 1998, appellant was denied the option to enroll in the
Priority Placement Program (PPP) due to the issuance of the July 14,
1998 Letter of Reprimand.
The agency accepted allegations (2) - (5), but dismissed allegation
(1) pursuant to EEOC Regulation 29 C.F.R. �1614.107(b), for untimely
counselor contact.
On appeal, appellant argues that he did not realize the meeting from
allegation (1) was discriminatory in nature until he was compiling a list
of incidents in August 1998, and realized that the meeting occurred in the
midst of a string of reprisal incidents. Appellant alleges that he became
aware of the discriminatory nature of allegation (1) on August 20, 1998.
Appellant also alleges that the agency improperly processed his complaint,
and has since failed to take action on allegations subsequently raised
with a counselor for a new complaint.
In response, the agency contends that appellant contacted an EEO Counselor
on August 28, 1998. The agency notes that in his request for counseling,
and his formal complaint, appellant claimed that allegation (1) was an
obvious attempt to intimidate appellant and compel appellant to avoid
the EEO process. The agency also notes that appellant expressed his
discontent with the meeting identified in allegation (1) via e-mail dated
June 30, 1998. Therefore, the agency argues, appellant clearly had a
reasonable suspicion of discrimination during the course of the June 29,
1998 meeting.
The record includes a document labeled "Chronology of Individual EEO
Complaint," dated October 26, 1998, which lists appellant's initial
EEO Counselor contact as August 28, 1998. However, the record also
includes an e-mail from appellant to the agency EEO Director dated
August 25, 1998, requesting a meeting with a counselor. The record
contains a copy of appellant's formal complaint, dated October 5, 1998,
which states that allegation (1) was "an obvious attempt to intimidate
me and my use of the EEO process . . . ." The formal complaint also
states that as appellant was composing a letter dated August 25, 1998,
regarding the present complaint, appellant "suddenly became aware that
this meeting (allegation (1)) was a pre-cursor of the subsequent events
(of retaliation)." The record also contains an e-mail from appellant
dated June 30, 1998, in which appellant contends that he was lured into
the June 29, 1998 meeting under the guise of meeting with a Colonel.
Appellant also notes that the "preemptive strike" counseling session was
without precedent in the agency, and involved two management officials,
including a Judge Advocate General officer, rather than appellant's
immediate supervisor.
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 Ball v. United
States Postal Service, EEOC Request No. 05880247 (July 6, 1988). Thus,
the limitations period 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.
Appellant initially contacted a counselor on August 25, 1998,
approximately fifty-seven (57) days after the occurrence of allegation
(1). The Commission finds that appellant had a reasonable suspicion of
discrimination by June 30, 1998, the date of his e-mail complaining of
the manner in which the meeting was conducted. In light of appellant's
June 30, 1998 e-mail, the Commission finds appellant's argument that
he did not realize the discriminatory nature of the allegation, which
he believed to be "obvious" in his formal complaint, unpersuasive.
Accordingly, the agency's decision 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. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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:
November 5, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations