01985077_r
09-07-1999
Frank Sobchak, Appellant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Frank Sobchak, )
Appellant, )
)
v. ) Appeal No. 01985077
) Agency No. 98-0411-SSA
Kenneth S. Apfel, )
Commissioner, )
Social Security )
Administration, )
Agency. )
______________________________)
DECISION
On June 18, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD), dated May 13, 1998, pertaining to
his complaint of unlawful employment discrimination in violation of
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. �621 et seq. and Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. �2000e et seq. The Commission accepts appellant's
appeal in accordance with EEOC Order No. 960, as amended.
In his complaint, appellant alleged that he was subjected to
discrimination on the bases of his age (50), national origin (Polish),
race (white), sex (male) and reprisal when:
He was not selected for the GS-343-13 Program Analyst position [vacancy
announcement number (VAN) H-1726], effective December 8, 1996.
He was not selected for the GS-105-13 Social Insurance Specialist (SIS)
position (VAN H-1727), effective June 22, 1997 and posted on SSA bulletin
boards in July 1997.
He was not selected for the GS-105-13 SIS position (VAN U-178), effective
March 2, 1997. On or about August 28, 1997, the complainant became
aware that he did not make the best qualified list (BQL).
He was not selected for the GS-105-13 SIS position (VAN U-180),
effective March 2, 1997.
He was not selected for the GS-105-13 SIS position (VAN U-181),
effective March 2, 1997.
He was not selected for the GS-105-13 SIS position (VAN U-182),
effective March 2, 1997.
He was not selected for the GS-105-13 SIS position (VAN U-183),
effective March 2, 1997.
He was not selected for the GS-105-13 SIS position (VAN P-1060),
effective March 16, 1997.
He was not selected for the GS-101-13 Social Science Research Analyst
position, (VAN H-1749), effective June 8, 1997.
He was not selected for the GS-105-13 SIS position (VAN H-1750),
effective June 8, 1997.
Also, appellant alleged other allegations in his formal complaint and
during EEO counseling, which the agency only described as "remaining
allegations" in its FAD. These allegations, essentially, encompass
appellant's assertion that the affirmative action policy of the
agency violates his "Fifth Amendment right to equal protection" and
is "unconstitutional" because it denies him (as a white male) career
advancement.
The agency dismissed allegations 1 through 10 pursuant to 29
C.F.R. �1614.107(b), and appellant's remaining allegations pursuant to 29
C.F.R. �1614.107(a). Specifically, the agency noted that, with respect
to all 10 of the allegations listed above, appellant initiated contact
with an EEO Counselor on September 26, 1997. The agency asserted that
appellant was constructively notified of his nonselection for each of the
VANs in question because the most recent VANs in question were posted on
bulletin boards throughout the SSA Headquarters on July 2, 1997, more
than 60 days before appellant sought EEO counseling. The agency noted
that appellant's allegations do not meet the standard of a continuing
violation because the VANs in question are unconnected events and there
was no one selecting official or one distinct organizational entity
responsible for each selection. Regarding the remaining allegations,
the agency found that appellant had raised the same allegations in prior
complaints 97-0098-SSA, 97-0206-SSA and 98-0376-SSA, which were pending
before the Commission.
The record indicates that the allegations in prior complaints 97-0098-SSA,
97-0206-SSA and 98-0376-SSA, address appellant's assertions that the
affirmative action policy of the agency violates his right to equal
protection under the law, thereby denying him career advancement as a
white male.
On appeal, appellant contends that he could not be expected to have
knowledge of any of the subject VAN effective dates since he is not
notified directly by the Office of Personnel (OP) pertaining to that
action. Appellant indicates that the vacancies were all in other office
components, therefore he would not know, and reasonably should not have
known, that these matters or personnel actions occurred. According to
appellant, he had been on leave for about a ten-day period, and upon
returning, began contacting OP specialists about various VANs, including
the 10 cited in this complaint, because he had not received notice of
any selections. Appellant asserts that he began receiving information
pertaining to the 10 VANs in question during the period of August 12th
through August 27, 1997. Concerning the remaining allegations, appellant
urges that these allegations should be examined by the agency under a
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.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
Upon review, we find that based upon the present record, it is unclear
when appellant learned of the nonselections at issue. While the agency
contends that the selections were posted on bulletin boards by July 2,
1997, appellant contends that he did not learn of his nonselection
until he received information from OP in August 1997. Consequently,
we find that the dismissal of allegations 1-10 for untimely EEO contact
must be vacated. These allegations are remanded to the agency for a
supplemental investigation in accordance with the Order below.
EEOC Regulation 29 C.F.R. �1614.107(a) provides that the agency shall
dismiss a complaint or a portion of a complaint that states the same claim
that is pending before or has been decided by the agency or Commission.
As to the remaining allegations, appellant stated the same allegations
in prior complaints 97-0098-SSA, 97-0206-SSA and 98- 0376-SSA, which
have been decided by the Commission. EEOC Appeal No. 01975467 (May 22,
1998) and EEOC Appeal No. 01984517 (June 3, 1999). Therefore, the agency
properly dismissed these allegations.
CONCLUSION
The agency's final decision regarding the remaining allegations is
AFFIRMED, while the agency's dismissal of the allegations 1-10 is hereby
VACATED. Allegations 1-10 are hereby REMANDED to the agency to conduct
a supplemental investigation in accordance with the Order below.
ORDER
The agency is ORDERED to take the following actions:
Within (15) calendar days of the date this decision becomes final,
the agency shall request information from appellant regarding the
names and dates of the individuals in OP who he contacted regarding
the nonselections at issue and copies of any information he received in
response to his contacts. Appellant shall be advised that he has fifteen
(15) calendar days from the date of his receipt of the agency's request
within which to respond.
The agency shall supplement the record with evidence consisting of
statements/affidavits regarding when appellant should have known of
his nonselections. In particular, the agency shall obtain statement
from the personnel who were responsible for the various postings of the
selections for the identified VANs, including the dates of such postings,
and copies of any postings. The agency shall gather any other relevant
evidence necessary to determine when appellant should have known of his
nonselections for the VANs at issue.
The agency shall issue a new FAD and/or notice of processing within
forty-five (45) calendar days. A copy of the new FAD and/or notice of
processing 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. �1614.410.
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 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. 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:
Sept. 7, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations