01A20518_r
06-20-2002
Richard Z. Sandoval, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Richard Z. Sandoval v. Department of Agriculture
01A20518
June 20, 2002
.
Richard Z. Sandoval,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A20518
Agency No. 980572
Hearing No. 340-A0-3684X
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final action dated September 20, 2001, dismissing 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.
In his complaint, complainant alleged that he was subjected to
discrimination on the basis of national origin (Hispanic) when:
From April 1997 through November 9, 1997 a co-worker harassed him with
derogatory remarks based on his national origin.
The agency accepted complainant's complaint for investigation, and at
the conclusion of the investigation, complainant requested a hearing
before an EEOC Administrative Judge (AJ). On May 23, 2001, the AJ
issued a decision dismissing complainant's complaint for untimely
EEO Counselor contact. Specifically, the AJ found that complainant
initiated contact with an EEO Counselor on March 12, 1998, regarding
the most recent alleged discriminatory incident on November 9, 1997,
and that the EEO Counselor contact was therefore untimely. On September
20, 2001, the agency issued a final action fully implementing the AJ's
decision pursuant to EEOC Regulation 29 C.F.R. � 1614.110(a).
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complainant's of
discrimination should be brought to the attention of an EEO Counselor
within forty-five days of the date of the matter alleged to be
discriminatory or, in the case of a personnel action, within forty-five
days of the effective date of the action.
The record reflects that complainant contacted an EEO Counselor 123 days
after the most recent alleged harassing incident. Complainant argues that
the time limit for contacting an EEO Counselor should be waived because
he was unaware of the relevant time periods for seeking counseling
and because he relied on an agency official he spoke with to resolve
the matter. The Commission is not persuaded by complainant's arguments
that he was not aware of the relevant time period for seeking counseling.
The record contains copies of agency documents which outline the EEO
process and the 45-day limitation period, and which were distributed to
complainant during a sexual harassment seminar on September 15, 1994.
Moreover, we find that complainant's reliance on an agency official to
resolve his concerns regarding the alleged discriminatory incident does
not excuse his untimely EEO contact. The Commission has consistently
held that the utilization of agency procedures, union grievances, and
other remedial processes does not toll the time limit for contacting an
EEO Counselor. See Ellis v. United States Postal Service, EEOC Appeal
No. 01992093 (November 29, 2000).
The Commission finds that complainant has failed to present adequate
justification for extending the limitation period beyond forty-five days.
Accordingly, the agency's final action was proper and is AFFIRMED for
the reasons set forth herein.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 20, 2002
__________________
Date