01980932
11-05-1998
William F. MacDonald Jr., Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
William F. MacDonald Jr., )
Appellant, )
)
v. ) Appeal No. 01980932
) Agency No. DCMDE-DK(XL-97-055)
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Logistics Agency), )
Agency. )
______________________________)
DECISION
On November 9, 1997, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) received by his attorney of record
on October 20, 1997, pertaining to his complaint of unlawful employment
discrimination in violation of Section 501 of the Rehabilitation Act of
1973, as amended, 29 U.S.C. �791 et seq. In his complaint, appellant
alleged that he was subjected to discrimination on the basis of physical
disability (Cerebral Palsy) when:
On an unknown date appellant was not selected for a Procurement
Technician (Office Automation) position, GS-1106-06, advertised under
JOA#172-96;
On October 28, 1996, appellant received notification from the agency
that he was not eligible for reinstatement to a Procurement Technician
(Office Automation) position, GS-1106-06, advertised under JOA#216-96;
On February 4, 1997, appellant received notification from the agency
that he was not eligible for reinstatement to a Procurement Technician
(Office Automation) position, GS-1106-06, advertised under JOA#75-97;
On an unknown date, appellant was notified that he was not selected
for a Procurement Technician (Office Automation) position, GS-1106-06,
advertised under JOA#137AA-97;
On or about May 29, 1997, appellant was notified that he was not selected
for a Procurement Technician (Office Automation) position, GS-1106-06,
advertised under JOA#226-97; and
On an unknown date, appellant was not selected for a Contract
Administrator Trainee position, GS-1102-5/7/9/11, advertised under
JOA#384-97.
On October 16, 1997, the agency issued a final decision accepting
allegation (e) for investigation. The agency dismissed allegations
(b) and (c), pursuant to EEOC Regulation 29 C.F.R. �1614.107(b), for
failure to initiate contact with an EEO Counselor in a timely manner;
and allegations (a), (d), and (f), pursuant to 29 C.F.R. �1614.107(a),
for failure to state a claim. Specifically, the agency determined that
appellant's June 17, 1997 initial EEO Counselor contact occurred more than
forty-five (45) days from the dates on which he was notified that he was
not selected for the positions identified in allegations (b) and (c).
Further, the FAD found that appellant failed to establish a continuing
violation because the non-selections were separate and distinct events,
rather than recurring in nature. Finally, the agency found that there
was no indication that appellant applied for the position identified
in allegation (a); no selection was made for the position identified in
allegation (d); and no selection was yet made for the position identified
in allegation (f). Based on the foregoing, the agency determined that
appellant was not aggrieved with respect to those allegations.
The Commission notes that the record is absent any documentation or other
proof supporting the agency's conclusions regarding allegations (a),
(d), and (f).
On appeal, appellant contends that he did not suspect discrimination
until after repeatedly being passed over for positions for which he was
qualified. Appellant further contends that his initial EEO Counselor
contact occurred within forty-five (45) days of when he first suspected
discrimination. Consequently, appellant argues that his initial EEO
Counselor contact was timely under the continuing violation theory.
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.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Ball v. USPS, EEOC Request
No. 05880247 (July 6, 1988). Thus, 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.
In the instant case, appellant contends that he only suspected
discrimination after he had repeatedly been passed over for positions
for which he was qualified. However, appellant failed to articulate
what factors, other than merely the quantity of non-selections, which
finally triggered his suspicion of discrimination. Moreover, appellant
did not identify the date on which he first suspected discrimination
and, consequently, we cannot determine whether his EEO contact was
within 45 days of that suspicion. Accordingly, we find that there is
insufficient information to determine the timeliness of appellant's EEO
contact regarding allegations (b) and (c).
With regard to allegations (a), (d), and (f), the record contains no
documentation or other evidence supporting the agency's assertions
concerning these allegations. The agency failed to provide for
the record evidence that appellant did not apply for the position
identified in allegation (a), that no selection was made for the position
identified in allegation (d), or that a selection for the position
identified in allegation (f) had yet to be made. Thus, the agency
failed to substantiate the bases for its final decision. See Marshall
v. Department of the Navy, EEOC Request No. 05910685 (September 6, 1991).
Consequently, we find that the agency's dismissal of allegations (a),
(d), and (f) was improper.
Accordingly, the agency's dismissal of allegations (b) and (c) is
hereby VACATED. The dismissal of allegations (a), (d), and (f) is
hereby REVERSED. The allegations are REMANDED to the agency for further
processing in accordance with this decision and the Order below.
ORDER
The agency is ORDERED to take the following actions:
1) Within fifteen (15) calendar days of the date this decision becomes
final, the agency shall send appellant a letter requesting that he
articulate the factors that caused him to suspect that his non-selections
were a result of discrimination based on his disability and on what
date he first suspected prohibited discrimination. The letter shall
notify appellant that he has fifteen calendar (15) days from receipt of
the request to provide the information or face dismissal pursuant to 29
C.F.R. �1614.107(g).
3) 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 acknowledgement 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.
Within thirty (30) calendar days of the date the agency receives
appellant's response, or within thirty (30) calendar days of the date
on which appellant's response was due, the agency shall issue a notice
of processing and/or a new FAD regarding the remanded allegations.
A copy of the agency's notice of processing and/or new FAD 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(c) (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. �1614.10.
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 (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. 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 filed your
appeal with the Commission. 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.
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:
Nov. 5, 1998
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations