0120081890
07-30-2010
Alex Montoya, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Army & Air Force Exchange Service), Agency.
Alex Montoya,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(Army & Air Force Exchange Service),
Agency.
Appeal No. 0120081890
Agency No. AAFES08011
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated February 15, 2008, dismissing his complaint of unlawful
employment discrimination. Upon review, the Commission finds that
Complainant's complaint was properly dismissed pursuant to 29 C.F.R. �
1614.107(a)(2), for untimely EEO Counselor contact.
ISSUE PRESENTED
Whether Complainant provided an adequate justification for extending
the 45-day time limitation period for contacting an EEO counselor.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a
truck driver at the Agency's West Coast Terminal in Stockton, California.
Complainant was given a seven day "Advance Notice of Separation" on
July 20, 2007, by the Agency on the basis that Complainant falsified his
driver log sheets in excess of 150 hours, drove in excess of DOT limits on
hours per day and received $2,600 in unearned payments as a result of his
falsified driver logs. Complainant was subsequently terminated on July
27, 2007. Complainant contacted an EEO counselor on October 15, 2007.
Complainant did not allege a basis for discrimination when he contacted
the EEO counselor, nor did he provide a basis at any point afterward. In
his complaint, Complainant alleged that the Agency subjected to him
discrimination when he was discharged for allegedly falsifying official
Agency documents without receiving a warning.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that he was unaware of the posters that
were posted around the Agency. Complainant contends that the time limit
should be extended because he never saw any posters.
The Agency contends that the posters were displayed in the break-room
where Complainant took breaks and in other locations in the building.
Therefore, the Agency argues that Complainant reasonably should have
known that there was a time limit and that he had constructive notice.
ANALYSIS AND FINDINGS
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. EEOC Regulations 29 C.F.R. � 1614.105 (a)(2) 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.
Upon review, the Commission finds that Complainant's complaint
was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2). The
record discloses that the alleged discriminatory event occurred on
July 27, 2007, but Complainant did not initiate contact with an EEO
Counselor until October 15, 2007, which was beyond the forty-five (45)
day limitation period. Based on a review of the record, we find that
Complainant had constructive knowledge of the applicable time limit. See
Santiago v. United States Postal Service, EEOC Request No. 05950272
(July 6, 1995). On appeal, Complainant stated that he was unaware of the
limitation period for counselor contact. However, the Agency provided
photocopies of the posters explaining the EEO process and time periods
that were posted throughout the building including in the break-room where
Complainant took his breaks. Thus, whether or not Complainant was actually
aware of the 45-day time limit, we find that the Agency established that
Complainant had constructive knowledge of the time limit. Id.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's
complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
___7/30/10_______________
Date
2
0120081890
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120081890