01976585
03-25-1999
Thomas P. Bezelik, Appellant, v. Lt. Gen. Kenneth A. Minihan, Director, National Security Agency, Agency.
Thomas P. Bezelik v. National Security Agency
01976585
March 25, 1999
Thomas P. Bezelik, )
Appellant, )
)
v. ) Appeal No. 01976585
) Agency No. 95-009
Lt. Gen. Kenneth A. Minihan, )
Director, )
National Security Agency, )
Agency. )
)
DECISION
The appellant timely filed an appeal with this Commission from a final
decision, dated August 5, 1997, which the agency issued pursuant to EEOC
Regulation 29 C.F.R. �1614.107(b). The Commission accepts the appellant's
appeal in accordance with EEOC Order No. 960, as amended.
On December 16, 1994, the agency dismissed the appellant's complaint for
untimely EEO counselor contact. Following an appeal, the agency issued
a letter, dated April 7, 1995, which effectively rescinded the dismissal
of the appellant's complaint and accepted for investigation the following
issue: Whether the appellant was illegally discriminated against when
he was not selected for promotion to GG-13 in September 1994.
In a prior appeal, the Commission treated the April 7, 1995 letter as
a second final agency decision. Bezelik v. National Security Agency,
EEOC Appeal No. 01952027 (March 27, 1996). The Commission found that
the agency had not conducted the appropriate investigation and legal
analysis relevant to a determination of a continuing violation claim. Id.
The Commission remanded for a supplemental investigation and ordered
the agency to obtain, among other things, documentary evidence of all
of the appellant's EEO contacts between 1990 and 1994. Id.
On remand, the agency conducted the supplementary investigation and
issued the final agency decision at issue in this appeal. The decision
dismissed the following issue for untimely EEO counselor contact:
Whether you were subjected to continuing illegal discrimination based on
your age, sex, and disability when you were not selected for promotion
prior to 24 December 1994, and that the non-selection constituted a
continuing violation from 1990-1994.
After a review of the record, including the appeal submissions of
the parties, the Commission finds that the appellant's EEO counselor
contact was not timely regarding non-selections which occurred more
than 45 calendar days before his October 21, 1994 counselor contact.
The Commission finds that the appellant did not pursue the non-promotion
issue after an initial meeting with an EEO counselor in December 1990.
According to the appellant's affidavit, he spoke with an EEO counselor
on December 10, 1990 regarding his non-promotion to grade 13 and his
non-receipt of premium pay. The appellant indicated that the counselor
determined that the premium pay issue (involving the appellant's lack of
an engineering degree) was non-EEO related and referred the appellant to
the Inspector General's (I.G.'s) Office. The appellant then contacted
the I.G.'s Office about the premium pay issue. The appellant did not
recall what happened to the non-promotion issue. Thus, it appears that
the appellant abandoned his non-promotion claim in 1990. The appellant
represented that he again raised his non-promotion discrimination
claim and the premium pay claim with the Deputy Director in 1992.
According to the appellant, the Deputy Director responded that the
appellant's allegations could not be addressed appropriately because he
had not put in official claims with the appropriate offices (EEO, I.G.,
etc.). This response should have alerted the appellant of the need to
formally initiate the EEO process regarding his non-selection/promotion
allegations. See Sabree v. United Brotherhood of Carpenters and Joiners
Local No. 33, 921 F.2d 396, 402 (1st Cir. 1990) (a knowing plaintiff
has an obligation to file promptly with the EEOC or lose his claim);
Roberts v. Gadsden Memorial Hospital, 850 F.2d 1549 (11th Cir. 1988)
(per curiam) (a claim arising out of an injury which is "continuing"
only because a plaintiff knowingly fails to seek relief is exactly the
sort of claim that Congress intended to bar by the limitations period).
The Commission finds that the agency erred in dismissing the
appellant's non-selection/promotion allegation as it pertains to his
non-selection/promotion on or about September 24, 1994, and to any other
non-selection which occurred within the 45-day period which preceded
his October 21, 1994 EEO counselor contact. This allegation was, on its
face, timely raised. The Commission finds no explanation in the record
for the agency's dismissal of this timely raised claim on two occasions.
CONCLUSION
For the reasons stated above, the Commission AFFIRMS the agency's
dismissal of the pre-September 1994 non-promotion allegation; REVERSES
the agency's dismissal of the appellant's September 1994 non-promotion
allegation; and REMANDS the September 1994 non-promotion allegation to
the agency for processing as ORDERED below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
of the appropriate rights within one hundred fifty (150) calendar days
of the date this decision becomes final, unless the matter is otherwise
resolved prior to that time. If the appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant and a copy
of the notice that transmits the investigative file and notice of rights
must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to
File A Civil Action." 29 C.F.R. �� 1614.408 and 1614.409. A civil
action for enforcement or a civil action on the underlying complaint is
subject to the deadline stated in 42 U.S.C. �2000e-16� (Supp. V 1993).
If the appellant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file
a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the
date you filed your complaint with the agency, or your appeal with the
Commission, until such time as the agency issues its final decision
on your complaint. 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 (Z1092)
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:
March 25, 1999
______________
Date Ronnie Blumenthal, Director
Office of Federal Operations