Patrick Kinsella, Appellant,v.William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.

Equal Employment Opportunity CommissionApr 16, 1999
01974655 (E.E.O.C. Apr. 16, 1999)

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