William M. Motiel, Complainant,v.Mel R. Martinez, Secretary, Department of Housing and Urban Development, Agency.

Equal Employment Opportunity CommissionOct 14, 2003
01A34089_r (E.E.O.C. Oct. 14, 2003)

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).