01A30284_r
08-07-2003
David J. Lipsky, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.
David J. Lipsky v. Department of the Army
01A30284
August 7, 2003
.
David J. Lipsky,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A30284
Agency No. AUFSPIQ203C0030
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated September 23, 2002, dismissing his complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. In his complaint, complainant alleged that he was subjected
to discrimination on the basis of disability when:
Complainant was denied a non-competitive promotion to GS-14.
The agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(4),
finding that complainant had previously filed an administrative grievance,
dated July 4, 2000, raising the same claim. The agency also dismissed
the complaint pursuant to 29 C.F.R. � 1614.107(a)(2), finding that
complainant failed to contact an EEO Counselor within 45 days of the
time he reasonably should have suspected discrimination. The agency
found that complainant contacted an EEO Counselor on November 8, 2001,
however, complainant's requests for non-competitive promotion were first
denied in May and June 2000, and the most recent action on his grievance
occurred on July 16, 2001.
On appeal, complainant contends that he is a discretionary employee, not
covered by a collective bargaining agreement and that his administrative
grievance was not filed pursuant to a "negotiated grievance procedure"
as defined by 29 C.F.R. � 1614.301. Complainant therefore argues that
the agency erroneously dismissed the complaint pursuant to 29 C.F.R. �
1614.107(a)(4). Complainant also argues that because the agency persists
in its inaction to promote him to GS-14, following the conclusion of a
desk audit that confirmed the grade level at which complainant's position
should be classified, his claim constitutes a recurring violation of
failure to promote each and every day, so long as the agency fails to act.
Complainant contends his claim is therefore timely.
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 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.
On appeal, complainant argues that the Commission should consider the
agency's on-going failure to promote complainant to GS-14 as a continuing
or recurring violation. We find that the instant complaint is not
similar to situations wherein the claimant has been denied a career
ladder promotion after reaching eligibility. Cf. Englund v. EEOC,
EEOC Appeal No. 01A10826 (July 13, 2001). When the agency's failure
to promote is a "discrete act," the claim is not amenable to analysis
under a continuing violation theory. See National R.R. Passenger
Corp. v. Morgan, 122 S. Ct. 2061, 2072-73 (2002) (stating that "discrete
discriminatory acts are not actionable if time barred, even when they
are related to acts alleged in timely filed charges," and noting that a
failure to promote is a discrete act). Specifically, we find that the
agency's July 16, 2001 denial of complainant's request for promotion
constitutes a discrete act, after which complainant was obligated to
present his claim for counseling within the established time limitations.
Complainant's initial EEO contact in November 2001 was therefore untimely
and the agency's dismissal of the complaint pursuant to 29 C.F.R. �
1614.107(a)(2) for untimely EEO contact is proper.
We therefore AFFIRM the agency's final decision dismissing the complaint.
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
August 7, 2003
__________________
Date