01A34089_r
10-14-2003
William M. Motiel, Complainant, v. Mel R. Martinez, Secretary, Department of Housing and Urban Development, Agency.
William M. Motiel v. Department of Housing and Urban Development
01A34089
October 14, 2003
.
William M. Motiel,
Complainant,
v.
Mel R. Martinez,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 01A34089
Agency No. NY-03-04
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated June 6, 2003, 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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.
On January 16, 2003, complainant initiated EEO contact. Informal efforts
to resolve his concerns were unsuccessful.
In his formal complaint, filed on March 3, 2003, complainant alleged
that he was subjected to discrimination on the bases of race (Caucasian),
national origin (Austrian-Hungarian) and age (D.O.B. 7/29/41) when<1>:
(1) an agency official denied his career ladder promotion to GS-15; and
(2) he was reassigned to the Office of Public Housing, while younger
minority Community Builders were retained in the Office of Field Policy
and Management.
The agency dismissed claim (1) on the grounds that complainant raised
the matter in a negotiated grievance procedure that permits allegations
of discrimination pursuant to 29 C.F.R. � 1614.107(a)(4). According to
the agency, complainant, through the union, filed a Step One grievance
concerning the denial of career ladder promotion to GS-15 on November 4,
1999. The agency further stated that complainant filed the same matter
in his Step Two grievance in January 2000 and Step Three grievance on
April 4, 2000, well before he filed his EEO complaint. Furthermore,
the agency stated that complainant's denial of career ladder promotion
was resolved in the grievance process.
The agency dismissed claim (2) on the grounds of untimely EEO Counselor
contact pursuant to 29 C.F.R. � 1614.107(a)(2). Specifically, the agency
determined that complainant's reassignment to the Office of Public
Housing was effective on March 24, 2002, but that complainant waited
more than forty-five days to contact the EEO office on January 16, 2003.
On appeal, complainant contends his November 4, 1999 grievance concerning
the denial of career ladder promotion "was terminated well before the
decision stage therefore, effectively was no grievance and, as such,
HUD's decision is moot." Complainant further contends that although he
was also listed as a member of a class action grievance, he was never
involved nor was asked for his consent. With respect to his reassignment
claim, complainant contends that following his reassignment and analysis
of the reassignment, it was not until January 16, 2003, that he came to
the conclusion that he was discriminated against by the agency.
EEOC Regulation 29 C.F.R. � 1614.301(a) states that when a person is
employed by an agency subject to 5 U.S.C. 7121(d) and is covered by a
collective bargaining agreement that permits claims of discrimination to
be raised in a negotiated grievance procedure, a person wishing to file a
complaint or grievance on a matter of alleged employment discrimination
must elect to raise the matter under either part 1614 or the negotiated
grievance procedure, but not both. An aggrieved employee who files
a grievance with an agency whose negotiated agreement permits the
acceptance of grievances which allege discrimination may not thereafter
file a complaint on the same matter under this part 1614 irrespective
of whether the agency has informed the individual of the need to elect
or whether the grievance has raised an issue of discrimination.
Regarding claim (1), the record in the instant case contains copies of
complainant's Step 1, 2, and 3 grievances, signed and dated November 4,
1999, April 4, 2000, and January 2, 2000. Therein, complainant, through
the union, stated that he had not received the career ladder promotion
in accordance with Article 13, Section 13 of the HUD/AFGE Agreement; and
that he had demonstrated working at the ability of the next grade level.
The agency also provided a copy of the "Agreement between U.S. Department
of Housing and Urban Development and American Federation of Government
Employees AFL-CIO," which states that "employees who have discrimination
complaints can opt to have their complaints resolved by either of the
following, but not both." Because complainant filed his grievances
before he contacted the EEO office, we find that he elected the grievance
process. Therefore, the agency properly dismissed claim (1).
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the limitation period
is triggered under the EEOC Regulations. See 29 C.F.R. � 1614.105(a)(2);
Ball v. United States Postal Service, EEOC Request No. 05880247 (July 6,
1988). Thus, the limitations period is not triggered until a complainant
reasonably should have suspected discrimination, but before all the
facts that would support a charge of discrimination have become apparent.
Regarding claim (2), the record indicates that complainant's initial EEO
Counselor contact on January 16, 2003, was more than forty-five days after
his reassignment to the Office of Public Housing was effective on March
24, 2002. Moreover, the Commission notes on appeal, complainant stated
that "subsequent to my involuntary transfer and after having accumulated a
preponderance of evidence over time, and deeply analyzing that evidence,
I came to a conclusion on January 16, 2003, that HUD had denied me
my promotion to GS-15 due to discrimination..." Clearly, complainant
suspected something was allegedly improper about his reassignment
that he �accumulated� a �preponderance of evidence� and analyzed the
evidence. The Commission finds that complainant did not contact an EEO
Counselor within forty-five days of the date he had, or should have had,
a reasonable suspicion of unlawful employment discrimination. Therefore,
the agency properly dismissed claim (2).
Accordingly, the agency's final decision 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 14, 2003
__________________
Date
1For purposes of clarity, the Commission has
numbered complainant's claims as claims (1) and (2).