01974655
04-16-1999
Patrick Kinsella, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Patrick Kinsella v. Department of Defense
01974655
April 16, 1999
Patrick Kinsella, )
Appellant, )
)
v. ) Appeal No. 01974655
) Agency No. 9548971001
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Logistics Agency), )
Agency. )
______________________________)
DECISION
On May 23, 1997, appellant filed a timely appeal with this Commission from
a final agency decision (FAD) dated April 25, 1997, pertaining to his
complaint of unlawful employment discrimination in violation of �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 (legal blindness) when:
On November 28, 1994, appellant was told that he did not qualify for
one of the three WG-4402-07 Bindery Machine Operation positions which
would remain after a pending Reduction in Force (RIF). Appellant further
alleges that the Binder Operator positions are identical to the duties
he performs as a Copier/Duplicator Equipment Operator GS-350-4;
Since April 1992, management refused to reclassify appellant's position
as a Copier/Duplicator Equipment Operator to a Bindery Machine Operator;
On April 6, 1992, the Director of the Defense Printing Service Detachment
Office made the following remark: "A blind guy is not going to be
working at our worksite."
In a FAD dated February 15, 1995, the agency accepted allegation (1), but
dismissed allegations (2) and (3) for untimeliness. Appellant appealed
the February 15, 1995 FAD to this Commission, which vacated the agency's
decision to dismiss allegations (2) and (3) in EEOC Appeal No. 01953127
(Dec. 19, 1996). The Commission ordered the agency to conduct a
supplemental investigation to determine: (1) when appellant initially
contacted an EEO Counselor; (2) whether appellant failed to timely file
a formal complaint; and (3) whether appellant abandoned the allegations
raised in the pre-1994 EEO counseling sessions. The agency also was
ordered to provide the affidavits of two agency officials whom appellant
claims instructed him not to file a formal complaint if appellant wished
to retain a job after the RIF.
After a supplemental investigation, the agency issued a new FAD
on April 25, 1997. Again, the agency accepted allegation (1),
but dismissed allegations (2) and (3) pursuant to EEOC Regulation 29
C.F.R. �1614.107(b), for untimeliness. Specifically, the agency found
that appellant brought allegations (2) and (3) to the attention of an
EEO counselor on April 15, 1993, and that appellant received a Notice
of Final Interview, dated May 6, 1993. Further, the agency found that
appellant did not file a formal complaint, but rather again brought the
matters to the attention of a counselor on December 1, 1994. The agency
found that appellant did not file a formal complaint on allegations
(2) and (3) until January 12, 1995. Therefore, the agency found that
appellant failed to file a formal complaint within 15 days of receiving
the May 6, 1993 Notice of Final Interview, and also that appellant failed
to timely contact a counselor because appellant abandoned his April 15,
1993 counselor contact.
On appeal, appellant argues through his representative that the agency's
decision should be reversed, because the agency failed to follow the
orders of EEOC Appeal No. 01953127. Specifically, appellant claims
that there is no evidence that he abandoned his complaint, and that the
agency failed to provide the affidavit of one of the agency officials
who allegedly encouraged appellant not to file a formal complaint.
Appellant also reiterates his argument from EEOC Appeal No. 01953127
� that the agency should be estopped from dismissing allegations (2)
or (3) for untimeliness because agency officials misled appellant to
dissuade him from filing a formal complaint.
The record on appeal includes a Counselor's Report with initial contact
date of April 12, 1993, and a Notice of Final Interview dated May 6, 1993.
The April 12, 1993 Counselor's Report mentions the Director's remarks
from allegation (3), but does not directly address allegation (2).
However, the Counselor's Report does state that "[appellant] feels that
he basically does the same work as the WG employees." The record also
contains an affidavit, denying any wrongdoing, from one of the agency
officials that appellant claims threatened him, and a letter to EEOC
Compliance Officers explaining that the agency did not take the other
official's affidavit because it could not find the other official.
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 limitations period
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 he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
The Commission finds that allegations (2) and (3) were not brought
to the attention of an EEO Counselor within forty-five (45) days of
their occurrence. Even if appellant's first conversations with an
EEO counselor, from April 1993, are considered appellant's initial EEO
Counselor contact, allegations (2) and (3) both occurred roughly one
year prior to appellant's contact. Accordingly, the agency's decision
to dismiss allegations (2) and (3) is AFFIRMED.
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 (S0993)
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:
April 16, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations