0120064486
03-26-2008
Richard Figueroa, Complainant, v. Michael B. Mukasey, Attorney General, Department of Justice, Agency.
Richard Figueroa,
Complainant,
v.
Michael B. Mukasey,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01200644861
Hearing No. 520-2006-00042X
Agency No. P-99-0153
DECISION
Complainant filed an appeal with this Commission regarding his complaint
of unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e
et seq. Complainant filed a complaint dated March 2, 1999, alleging
that he was discriminated against on the bases national origin ("Hispanic
(Puerto Rican)") and in retaliation for prior protected EEO activity.
Complainant requested a hearing before an EEOC Administrative Judge.
The agency filed a motion to dismiss the complaint pursuant to 29 C.F.R. �
1614.107(a)(2) for untimely EEO Counselor contact. The agency, in its
motion to dismiss, defined the complaint as alleging that complainant was
discriminated against "when he was not selected for several positions
to which he applied during the period from February 1990 to January
1996 and when he was transferred in January 1996." The agency argued
that complainant did not contact an EEO Counselor until January 19,
1999, which was outside of the 45-day time limit for contacting an EEO
Counselor. Complainant filed a motion in opposition to the agency's
motion to dismiss. Complainant argued that he timely contacted an EEO
Counselor on January 19, 1999, which was the day he received the agency
decision not to fill the position of 98-NERO-173. Complainant notes
that the agency discriminatorily decided not to fill the position of
98-NERO-173 on December 29, 1998.
The AJ dismissed complainant's complaint on the grounds of untimely
EEO Counselor contact. The AJ described the complaint as alleging
that complainant was "denied several positions from 1990 and when his
position was ultimately relocated in January 1996." The AJ found that
complainant initially contacted an EEO Counselor on January 19, 1999.
The AJ explained his reasoning as follows:
I find that the record did not support tolling the limitation period based
upon the Complainant not being informed of his December 1998 non-selection
until January 19, 1999. Given the history of harassment, his previous
non-selections, the alleged bias comments made about him from 1990, to
his forced relocation in January 1996, and his non-selection in 1998,
the Complainant should have reasonably suspected discrimination much
sooner than January 1999. [citation omitted]
There is no decision in the record from the agency, so the AJ's decision
has now become the agency's decision. See 29 C.F.R. � 1614.109(i).
On appeal, complainant argues that he timely contacted an EEO Counselor
because he contacted an EEO Counselor on January 19, 1999, which was
just 21 days after the personnel decision was issued not to select
complainant.
Complainant's complaint consists of a long narrative discussing many
non-selections and various attachments. One of the attachments is the
form from the agency dated December 29, 1998, notifying complainant that
he was not selected for Vacancy Announcement 98-NERO-173, Construction
Representative, GS-809-11, FMC Danbury, Connecticut. Both parties admit
that complainant contacted an EEO Counselor on January 19, 1999.
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 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. 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.
The Commission finds that the personnel action of the non-selection
was effective on December 29, 1998, and that complainant timely raised
this matter with an EEO Counselor on January 19, 1999. Therefore,
we find that the agency and the AJ improperly dismissed this claim.
To the extent that complainant is challenging the dismissal of any other
claims in the complaint (he does not mention any such claims on appeal),
we find that complainant has failed to show that any other incident
occurred within 45 days of January 19, 1999. Furthermore, complainant
does not argue that he did not reasonably suspect the discriminatory
nature of such other incidents 45 days or less before January 19, 1999.
We REVERSE the agency's dismissal of the claim regarding the December 29,
1998 non-selection for Vacancy Announcement 98-NERO-173, Construction
Representative, GS-809-11, FMC Danbury, Connecticut and we REMAND this
claim for a hearing in accordance with this decision and the Order herein.
We AFFIRM the dismissal of the remainder of the complaint.
ORDER
The agency shall submit to the Hearings Unit of the EEOC's New York
District Office the request for a hearing within 15 calendar days of the
date this decision becomes final. The agency is directed to submit a
copy of the complaint file to the EEOC Hearings Unit within 15 calendar
days of the date this decision becomes final. The agency shall provide
written notification to the Compliance Officer at the address set forth
below that the complaint file has been transmitted to the Hearings Unit.
Thereafter, the Administrative Judge shall issue a decision on the
complaint in accordance with 29 C.F.R. � 1614.109 and the agency shall
issue a final action in accordance with 29 C.F.R. � 1614.110.
.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement of
the order. 29 C.F.R. � 1614.503(a). The complainant also has the right
to file a civil action to enforce compliance with the Commission's order
prior to or following an administrative petition for enforcement. See 29
C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively,
the complainant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action
for enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. � 2000e-16(c)(Supp. V 1993). If the
complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 26, 2008
__________________
Date
1 Due to a new data system, the Commission has redesignated the instant
case with the above- referenced appeal number.
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0120064486
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036