01994843_r
10-31-2001
Paul A. Mehalich, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Paul A. Mehalich v. Department of the Army
01994843
October 31, 2001
.
Paul A. Mehalich,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01994843
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision regarding 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. The Commission accepts the
appeal in accordance with 29 C.F.R. � 1614.405.
On November 23, 1998, complainant contacted the EEO office regarding
claims of discrimination based on disability. Informal efforts to resolve
complainant's concerns were unsuccessful. Subsequently, complainant filed
a formal complaint dated April 16, 1999. The agency, in its decision,
framed complainant's claims as follows:
(1) The Ammunition Directorate, Tooele Army Depot disqualifies
job applicants for disability without analyzing possible reasonable
accommodation to accomplish the essential elements of the job;<1>
(2) The Ammunition Director and Tooele Army Depot management and staff
allows peers to select candidates for permanent position but to have
these decisions overridden by Ammunition Director and his management
without any articulated legitimate business reason for overturning the
selection, as applied to my permanent selection; and
(3) The TEAD Ammunition Directorate were discriminatory to complainant
during the time of his employment at Tooele Army Depot and it still
affects him since he has been prevented from being a permanent employee.
On April 29, 1999, the agency issued a decision dismissing the complaint
for untimely EEO Counselor contact. Specially, the agency determined that
the conversion to a term appointment position of Explosives Operator was
effective September 25, 1997, but that complainant failed to contact an
EEO Counselor until over a year later on November 23, 1998. Regarding the
incident relating to the December 3, 1998 letter, the agency determined
that complainant failed to bring this matter to the EEO Counselor's
attention during the processing of the complaint.
On appeal, complainant contends that he had difficulties contacting
the EEO office, noting that he placed ten to fifteen phone calls without
reaching a staff person or answering machine. Complainant also reiterates
his belief that the agency non-selects or de-selects employees after
determining that the employee has a disability. Complainant maintains
that the agency is involved in the �non-selection of employees without
a serious examination of efforts to accommodate at the time of job
application�, and that such action was reaffirmed by the Director in
his December 3, 1998 letter. With respect to the agency's attempt
to dismiss the letter on the grounds that it was not raised during
counseling, complainant argues that the agency should be estopped from
doing so because it is an agency document responding to the very claims he
presented to the EEO Counselor. Complainant also contends that the claims
comprise a continuing violation and therefore should be considered timely.
In response, the agency maintains that complainant's EEO Counselor
contact was untimely and that the complaint raised a matter that was not
the subject of EEO counseling. With respect to claim (1), the agency
states that the Tooele Army Depot processed a notification of personnel
action, to be effective March 16, 1997, converting complainant from
a Material Handler to an Explosives Operation position. On March
26, 1997, a notification of personnel action was processed that
canceled the conversion; but that complainant did not contact the
EEO office until November 23, 1998, more than 600 days after the time
limit. Similarly, the agency reiterates that in claim (2), complainant
was converted to an Explosives Operator effective September 25, 1997,
a term appointment that was not to exceed September 25, 1998, but
did not contact the EEO office until November 1998. Regarding claim
(3), the agency argues that complainant was provided a reasonable
accommodation, in that he was allowed to work in a light duty status
for several months. The agency reasons that the conversion was canceled
because complainant did not complete his physical examination which was a
position requirement. Moreover, the agency contends that complainant was
hired for a term position, and as a temporary employee he was subject to
termination at any time. Finally, the agency reiterates its contention
that complainant failed to raise the matter relating to the December 3,
1998 letter with the EEO Counselor.
Matter not raised with EEO Counselor
In its dismissal of claim (1), the agency reasoned that complainant failed
to raise the December 3, 1998 letter from the Ammunition Director with the
EEO Counselor. The agency acknowledges that during his initial contact
on November 23, 1998 complainant provided a copy of the November 19, 1998
letter he wrote to the Ammunition Director. The agency argues, however,
that the Director's response occurred after the contact and therefore �was
not a fact to be gathered� by the EEO Counselor. According to the agency,
even after receiving the letter, complainant did not provide the document
to the EEO Counselor and therefore its dismissal based on 1614.107(a)(2)
was proper.
The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in
pertinent part, that an agency shall dismiss a complaint which raises a
matter that has not been brought to the attention of an EEO Counselor,
and is not like or related to a matter on which the complainant has
received counseling. A later claim or complaint is "like or related"
to the original complaint if the later claim or complaint adds to
or clarifies the original complaint and could have reasonably been
expected to grow out of the original complaint during the investigation.
See Scher v. United States Postal Service, EEOC Request No. 05940702
(May 30, 1995); Calhoun v. United States Postal Service, EEOC Request
No. 05891068 (March 8, 1990).
In the instant case, the Commission finds that the December 3, 1998
letter is related to the claims of discrimination that were counseled.
In fact, the Director's letter is a response to the complainant's
claims of discrimination, which were raised with the EEO Counselor.
For example, the Director addresses complainant's March 1997 selection,
the physical requirements of the position, and the light duty status
given to complainant. We find that the information presented in the
letter would have resulted from an investigation of complainant's claims.
Consequently, the agency's decision to dismiss the event regarding the
December 3, 1998 letter was improper.
Untimely Counselor Contact
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 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.
However, 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 has held that the time requirements for initiating EEO
counseling could be waived as to certain claims within a complaint when
the complainant alleged a continuing violation; that is, a series of
related discriminatory acts, one of which fell within the time period for
contacting an EEO Counselor. See Reid v. Department of Commerce, EEOC
Request No. 05970705 (April 22, 1999); McGivern v. United States Postal
Service, EEOC Request No. 05901150 (December 28, 1990). In essence,
it is necessary to determine whether the acts are interrelated by a
common nexus or theme. See Vissing v. Nuclear Regulatory Commission,
EEOC Request No. 05890308 (June 13, 1989); Verkennes v. Department
of Defense, EEOC Request No. 05900700(September 21, 1990); Maldonado
v. Department of Interior, EEOC Request No. 05900937 (October 31,
1990). Should such a nexus exists, complainant will have established a
continuing violation and the agency would be obligated to �overlook the
untimeliness of the complaint with respect to some of the acts� challenged
by complainant. Scott v. Clator, 469 F. Supp. 22, 26 (D.D.C. 1978).
Here, as even noted in the agency's decision, complainant asserts that
he was discriminated against because the agency disqualified applicants
with disabilities without providing a legitimate reason or considering
possible reasonable accommodations. We find that events presented in the
instant case, occurring in March 1997, September 25, 1997 and December
3, 1998, constitute a continuing violation of interrelated events.<2>
Moreover, the Commission finds that the agency erred by dismissing
complainant's complaint under the �reasonable suspicion� standard when
there is a common nexus between the entire span of events alleged in
the complaint. See Anisman v. Department of the Treasury, EEOC Request
No. 05A00283 (April 13, 2001). Therefore, because the last chronological
incident described in the complaint occurred within forty-five days of
his initial EEO contact on November 23, 1998, we find that his contact
was timely with respect to the entire complaint.
Accordingly, the agency's decision to dismiss complainant's complaint
was improper, and is hereby REVERSED. The complaint is REMANDED to the
agency for further processing in accordance with this decision and the
Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant 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. �� 1614.407 and 1614.408.
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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 (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
October 31, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1The agency's description of claim (1) is based upon the language used
by complainant in his formal complaint. However, the agency failed to
include complainant's reference to a December 3, 1998 letter from the
Director of Ammunition Operations. According to the formal complaint,
the agency's discriminatory action was �reaffirmed� by the Director in his
letter, wherein he stated �We could have terminated you when you did not
make physical requirements for the position that you had been hired for.�
2Although complainant framed his claims as concerning a �policy
and practice�, we do not find that the record supports a finding
of a systemic, as opposed to serial, continuing violation. Both the
Commission and the courts distinguish between these two types. A serial
violation is comprised of a number of separate acts emanating from the
same animus, while a systemic violation is based upon a discriminatory
policy or practice. See Owen v. Social Security Administration, EEOC
Request No. 05950865 (December 11, 1997). A systemic violation does not
require a discrete act of discrimination to occur within the limitations
period, and as long as the policy or practice itself continues into the
limitations period, a challenger may be deemed to have filed a timely
complaint. See Murphy v. Social Security Administration, EEOC Request
No. 05950827 (December 11, 1997).