01A33051_r
09-10-2003
Gary D. Yeschick, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Gary D. Yeschick v. Department of Transportation
01A33051
September 10, 2003
.
Gary D. Yeschick,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A33051
Agency No. 4-03-4008
DECISION
Complainant filed an appeal with this Commission from a March 21,
2003 agency decision, dismissing his complaint pursuant to 29 C.F.R. �
1614.107(a)(2), for untimely EEO Counselor contact. In his complaint,
complainant alleged that he was subjected to discrimination on the
basis of age when in September 2001, he was not rehired as an air
traffic control specialist from the Professional Air Traffic Controllers
Organization (PATCO) register for the Cleveland Air Route Traffic Control
Center (ARTCC).
In dismissing the complaint, the agency noted that complainant applied
for a position as an air traffic control specialist in 1993, but made no
inquiry regarding his application nor took any action, until he contacted
an EEO Counselor in October 2002. The agency reasoned that complainant
should have had a reasonable suspicion of discrimination more than 45
days before he contacted an EEO Counselor and failed to exercise due
diligence regarding his application.
On appeal, complainant asserts that he was not aware that he was
discriminated against until September 21, 2002, and therefore his EEO
Counselor contact in October 2002, was timely. He also notes that
no hiring occurred at the Cleveland ARTCC between 1993 and 1996, and
therefore he would not have suspected discrimination. Even if he had
made inquiries concerning his application, he would have discontinued
them since the agency was not hiring. Complainant also argues that the
discrimination complaints of other air controllers who became aware of
discriminatory hiring in September 2001, and who made no inquiries of
the agency were not dismissed by the agency.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) provides that an aggrieved
person must initiate contact with an EEO Counselor within 45 days of the
alleged discriminatory event. The Commission has adopted a "reasonable
suspicion" standard (as opposed to a "supportive facts" standard) to
determine when the 45-day limitation period is triggered. See Howard
v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999).
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 Regulation 29 C.F.R. � 1614.105(a)(2) provides that the time
limit shall be extended if the individual shows that he or she was
not notified of the time limits and was not otherwise aware of them,
that he or she did not know and reasonably should not have known that
the discriminatory matter or personnel action occurred, that despite
due diligence he or she was prevented by circumstances beyond his or
her control from contacting the Counselor within the time limits, or
for other reasons considered sufficient by the agency or the Commission.
The record reveals that complainant was removed from his position
in 1981, when President Ronald Reagan terminated air traffic control
specialists who were members of PATCO union for participating in a strike.
In 1993, President William Clinton lifted the ban on re-employment of
air traffic control specialists terminated as a result of the strike.
Persons whose employment had been terminated because of the strike could
be considered for re-employment as air traffic control specialists and
other positions. Complainant applied for re-employment. Complainant
received no information from the agency regarding his application and
did not make any inquiries. Complainant moved in 1994, and did not
notify the agency of any change of address. Mail sent to complainant in
1995, was returned to the agency with the notation that complainant's
forwarding order had expired. Complainant's application was placed on
inactive status by the agency in 1998 because his mail was returned.
Since October 1998, there were no former PATCO air traffic control
specialists hired in the Cleveland ARTCC.
In his affidavit, complainant stated that on or about September 21,
2002, he was talking to a former PATCO controller when he was informed
that the Cleveland ARTCC had recently hired younger individuals as air
traffic control specialists. Prior to then, he stated that he had no
reason to believe that he had been subjected to age discrimination.
The record discloses that complainant did not initiate contact with an
EEO Counselor until October 3, 2002.
We find that complainant contacted the EEO Counselor well beyond the
45-day time limitation and he should have had a reasonable suspicion of
discrimination more than 45 days before initiating contact. There is no
evidence in the record indicating that there was any relevant selections
within 45 days of complainant's contact. Moreover, complainant has
failed to provide any reason for tolling or extending the time limits.
The Commission has consistently held that a complainant must act with
due diligence in the pursuit of his claim. See O'Dell v. Department
of Health and Human Services, EEOC Request No. 05901130 (December 27,
1990). We find that complainant filed an application for re-employment
with the agency in 1993, when he first learned that former air traffic
controllers could be rehired. Complainant did not pursue the EEO
complaint process regarding the agency's failure to rehire him until
October 2002, after a conversation with another former air traffic
controller. We find that because complainant waited approximately
nine years from the date of his application to bring his claim to the
agency's attention, he failed to act with due diligence. See Burgy
v. Department of Transportation, EEOC Appeal No. 01A31087 (April 30,
2003); Fricke v. Department of Transportation, EEOC Appeal No. 01A02794
(December 5, 2001). The reasons set forth by complainant do not justify
his delay in contacting an EEO Counselor.
Accordingly, the agency's dismissal of the complaint is AFFIRMED.
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
September 10, 2003
__________________
Date