01A20102_r
10-22-2002
Santos Castillo, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Santos Castillo v. Department of the Air Force
01A20102
October 22, 2002
.
Santos Castillo,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A20102
Agency No. KHOF00040
DECISION
Complainant filed an appeal with this Commission from an AJ's decision,
issued on December 28, 2000, 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.
The record reveals that during the relevant time, complainant was a Flight
Engineer Examiner at the agency's base in Kelly, Texas. Believing that
he suffered discrimination in reprisal for his prior EEO activity,
complainant contacted the EEO office. Informal efforts to resolve
complainant's concerns were unsuccessful. On April 5, 2000, complainant
filed a formal complaint claiming that he was discriminated against when:
(1) From January 1999 until February 2000, agency officials advised
Wilford Hall Medical Center personnel that complainant had suffered a
nervous breakdown;
(2) In July 1999, complainant was referred for a medical evaluation; and
(3) On December 16, 1999, complainant was issued a Notification of
Separation from his Air Reserve Technician (ART) position.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). The AJ issued a decision, dismissing the complaint.
Specifically, on December 13, 2000, the AJ issued an "Order to Show
Cause," ordering complainant to show why his complaint should not
be dismissed. The AJ stated that claims (1) and (2) were previously
addressed during a hearing held in April 2000, before another EEOC AJ.
With respect to claim (3), the AJ found that complainant was issued a
Notification of Separation from his ART position on December 16, 1999;
and that he did not contact an EEO Counselor until February 15, 2000,
beyond the forty-five day time limitation. On December 28, 2000, after
receiving complainant's response, the AJ dismissed the complaint pursuant
to 29 C.F.R. � 1614.107(a)(1) and (a)(2).
The agency did not issue a final order, and noted on appeal that because
it did not do so within forty days of receipt of the AJ's decision,
the AJ's decision became the final action of the agency.
On appeal, complainant argues that the AJ only ordered him to show cause
as to claims (1) and (2). Further, he contends that the AJ failed to
provide "a proper analysis of the facts and/or evidence. . . ." Finally,
complainant states that the AJ did not inform him of his appeal rights.
In response, the agency argues that complainant's appeal is untimely.
The agency notes that although the AJ decision was issued on December 28,
2000, and copies were served on complainant and his counsel, complainant
did not file his appeal until September 15, 2001. Approximately eight
months passed between the AJ's decision becoming final and complainant's
appeal. The agency contends that "complainant's counsel, an experienced
practitioner in the area of employment law in the federal sector is
quite familiar with the applicable time limits . . . ." Further, the
agency argues that if the Commission finds the appeal is timely, the
AJ's decision should be affirmed. The agency argues that claims (1)
and (2) were previously heard and complainant's EEO Counselor contact
for claim (3) was untimely. Finally, the agency argues that claim (3)
is "a matter beyond the cognizance of the Commission." Specifically,
the agency asserts that "uniformed members of the military departments
are specifically exempted from the categories of individuals covered by
federal sector EEO process." As such, the agency argues that claim (3)
should be dismissed for failure to state a claim.
As a preliminary matter, we do not agree with the agency's claim that
complainant's appeal was untimely. The agency correctly stated that
the AJ's decision shall become the final action of the agency if the
agency does not issue a final order within 40 days of receipt of the
AJ's decision and hearing file. See 29 C.F.R. � 1614.109 (i). However,
there is no evidence in the record showing precisely when the agency
received the decision and hearing file, nor when complainant became
aware of the agency's receipt. Therefore, it is unclear when the time
limit started to run. Additionally, on appeal, complainant argues that
the AJ did not provide him with appeal rights. The documents in the
record do not indicate that the complainant was given appeal rights.
Consequently, the Commission finds the instant appeal timely.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that
the agency shall dismiss a complaint that states the same claim that is
pending before or has been decided by the agency or Commission.
The AJ dismissed claims (1) and (2) on the grounds that the matters
were previously heard by another AJ as part of a different case filed by
complainant. A review of the record reveals that the nervous breakdown
comment (claim 1) and the required medical evaluation (claim 2) were
addressed in an AJ Decision issued on June 15, 2000, as part of agency
case number KHOF99299. Therefore, the Commission finds that the AJ's
dismissal of claims (1) and (2) was proper.
Claim (3) was dismissed on the grounds of untimely counselor contact.
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 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.
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.
The record shows that complainant was issued a Notification of Separation
on December 16, 1999. He did not contact an EEO Counselor until February
15, 2000, well beyond the forty-five day time limitation. Complainant
has not provided any reason for tolling or extending the time limit.
Consequently, we find that claim (3) was properly dismissed by the AJ.<1>
Therefore, after a careful review of the record, including arguments and
evidence not specifically addressed in this decision, we AFFIRM the AJ's
decision to dismiss the complaint.
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
October 22, 2002
__________________
Date
1 Because of our disposition we do not address the agency's contention
on appeal that claim (3) fails to state a claim.