01A15252_r
12-04-2002
Zaldy N. Sabino, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Zaldy N. Sabino v. Department of the Navy
01A15252
December 4, 2002
.
Zaldy N. Sabino,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A15252
Agency No. 01-00189-089
DECISION
Complainant appealed to this Commission from the agency's August 15, 2001
dismissal of his employment discrimination complaint. In his complaint,
complainant alleged discrimination on the bases of race (Asian) and sex
(male) when:
On September 10, 2000, complainant was selected at the GS-5 level,
inconsistent with his qualifications, and at a lower level than the
other selectees;
The agency refused to correct complainant's record in the selection by
establishing complainant's promotion date to GS-7 retroactive to the
date he was hired.
The agency dismissed the complaint for untimely counselor contact.
Specifically, the agency found that complainant suspected discrimination
on September 11, 2000, when he contacted agency officials about his
grade level; but complainant failed to contact an EEO Counselor until
May 27, 2001. The agency noted that even if complainant did not suspect
discrimination until the agency issued a April 12, 2001 letter confirming
that he would not receive a retroactive grade-increase, his contact was
still untimely.
On appeal, complainant argues that he did not suspect discrimination until
he received the April 12, 2001 letter on April 17, 2001. Complainant
explains that until he received that letter, he believed that the original
rating at GS-5, and the agency's failure to retroactively promote him
to GS-7 was an administrative mistake.
In response, the agency contends that complainant first raised concerns
about his grade level on August 22, 2000, when he was first offered
the position at GS-5. The agency contends that complainant must have
suspected discrimination by September 29, 2000, when he wrote the Office
of Personnel Management to inquire (among other issues) why he was not
qualified as a GS-7. The agency argues that complainant received further
feedback through e-mails from a personnel officer to complainant's
supervisor beginning October 24, 2000, informing the supervisor that
complainant was not qualified as a GS-7 because he did not provide a
copy of his college and graduate transcripts. In another e-mail dated
January 31, 2001, the personnel officer informed complainant's supervisor
that he could not receive a retroactive upgrade because of his failure
to verify his education.
The agency also argues that complainant should have suspected
discrimination when he was promoted to GS-7 on January 14, 2001, but the
promotion was not retroactive. Further, the agency notes that complainant
met with a personnel officer on March 1, 2001, and was informed that
he did not qualify for the GS-7 position initially because there was
no verification of his experience and education. The agency included a
�Memo for the Record� from the officer who met with complainant on March
1, 2001. Therein, the officer stated that he informed complainant his
GS-7 promotion could not be made retroactive.
Complainant must raise claims of discrimination within forty-five (45)
days of their occurrence. See 29 C.F.R. � 1614.105(a)(1). The agency
may dismiss claims that fail to comply with this time limit. See 29
C.F.R. � 1614.107(a)(2). 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.
With regard to claim (1), the Commission finds that complainant should
have suspected discrimination when he arrived at work on September 10,
2000, and learned that other new employees had been hired above his GS-5
pay rate. Therefore, the agency's dismissal of claim (1) was proper.
The Commission finds that complainant should have suspected discrimination
with regard to claim (2) when he learned that his January 14, 2001
promotion would not be made retroactive. The agency provided no evidence
that complainant received a copy or notice of the e-mails between
his supervisor and the personnel officer. Nonetheless, if complainant
believed that the agency's failure to make the promotion retroactive was
an administrative error, he should have been dissuaded of this belief
when he met with the personnel officer on March 1, 2001. Complainant's
decision to pursue the claim internally does not toll the time limit.
Therefore, his May 27, 2001 EEO Counselor contact was untimely.
CONCLUSION
Accordingly, the agency's dismissal 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
December 4, 2002
__________________
Date