05980875
11-04-1999
Paul M. Brown, Appellant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Paul M. Brown v. Social Security Administration
05980875
November 4, 1999
Paul M. Brown, )
Appellant, )
) Request No. 05980875
v. ) Appeal No. 01972365
)
Kenneth S. Apfel, )
Commissioner, )
Social Security Administration, )
Agency. )
)
DENIAL OF RECONSIDERATION
On May 29, 1998, Paul M. Brown (hereinafter referred to as appellant)
initiated a request to the Equal Employment Opportunity Commission
(Commission) to reconsider the decision in Paul M. Brown v. Kenneth
S. Apfel, Commissioner, Social Security Administration, EEOC Appeal
No. 01972365 (April 21, 1998).<1> EEOC Regulations provide that the
Commissioners may, in their discretion, reconsider any previous decision.
29 C.F.R. �1614.407(a). The party requesting reconsideration must submit
written argument or evidence which tends to establish one or more of
the following three criteria: new and material evidence is available
that was not readily available when the previous decision was issued,
29 C.F.R. �1614.407(c)(1); the previous decision involved an erroneous
interpretation of law, regulation, or material fact, or a misapplication
of established policy, 29 C.F.R. �1614.407(c)(2); and the decision is of
such exceptional nature as to have substantial precedential implications,
29 C.F.R. �1614.407(c)(3). For the reasons set forth herein, appellant's
request is denied.
ISSUE PRESENTED
The issue presented herein is whether the previous decision properly
affirmed the agency's dismissal of 5 allegations in appellant's
complaint.
BACKGROUND
The record in the case herein reveals that appellant contacted an EEO
Counselor on June 18, 1996, and subsequently filed a formal complaint
alleging that he had been discriminated against on the bases of his race
(Caucasian), and sex (male) when: 1. he was nonselected for the position
of Systems Accountant; 2. he was nonselected for 11 different positions
from August 1984 through February 1995; 3. he was not selected for the
Office of Program Integrity Review Career Development and Enrichment
Program in December 1989 and for the Mid-Level Management Program in
February 1992; 4. he was denied or received low awards from 1982 through
1995; 5. he was denied "outstanding" performance ratings during the
periods from 1982 through 1994; and 6. the agency pursued a "systemic
discriminatory policy against all males and particularly white males
in the following personnel practices: hiring, rating, awards, and
promotions."
In its final decision dated December 18, 1996, the agency accepted
allegation 1 for investigation. The agency, however, dismissed
allegations 2 through 5 for failure to timely contact an EEO Counselor.
The agency rejected appellant's assertion that he was not aware of the
alleged discrimination until receiving certain EEO reports in May 1996,
stating that the actions at issue had a degree of permanence and did not
constitute a continuing violation. The agency also dismissed allegation
6 for failure to state a claim, noting that the matter was merely a
generalized grievance. The previous decision affirmed the agency's
dismissal of appellant's complaint.
In his request for reconsideration, appellant asserted that he also raised
an allegation concerning the informal processing of his complaint, stating
that he was not counseled with regard to the matter cited in allegation 6.
Appellant reiterated that his complaint involves a continuing violation
such that the time limitations for contacting a Counselor were suspended.
The agency did not respond to appellant's request for reconsideration.
ANALYSIS AND FINDINGS
As discussed above, the Commission may, in its discretion, reconsider
any previous decision when the party requesting reconsideration submits
written argument or evidence which tends to establish that any of the
criteria of 29 C.F.R. �1614.407(c) is met. In order for a case to
be reconsidered, the request must contain specific information which
meets the requirements of this regulation. It should be noted that the
Commission's scope of review on a request to reconsider is limited. Lopez
v. Department of the Air Force, EEOC Request No. 05890749 (September 28,
1989).
After a careful review of the previous decision, appellant's request
for reconsideration, and the entire record, the Commission finds that
appellant's request fails to meet the criteria in 29 C.F.R. �1614.407(c).
Specifically, appellant has presented no evidence to show that the
agency's dismissal of allegations 2 through 6 in his complaint was
improper.
With regard to allegations 2 through 5, EEOC Regulation 29
C.F.R. �1614.105(a)(1) requires that complaints of discrimination
be brought to the attention of the EEO Counselor within 45 days of
the alleged discriminatory event, or the effective date of an alleged
discriminatory personnel action. The Commission has adopted a "reasonable
suspicion" standard (as opposed to a "supportive facts" standard) to
determine when the limitation period for contacting an EEO Counselor
is triggered under the applicable regulations. See Ball v. USPS, EEOC
Request No. 05880247 (July 6, 1988). Thus, the limitations period is not
triggered until a complainant should reasonably suspect discrimination,
but before all the facts that would support a charge of discrimination
become apparent.
As stated, appellant first contacted an EEO Counselor in June
1996. Appellant asserted that he did not become aware of the alleged
discrimination until receiving various EEO reports in May 1996, and
that the allegations in question constitute a continuing violation.
The Commission, however, finds these arguments to be unpersuasive.
Appellant cited numerous different actions which occurred over a period
of more than 13 years. While the continuing violation doctrine can be
invoked to suspend the normal time limit for contacting an EEO Counselor,
a continuing violation will not be found where the acts complained
of are by themselves capable of triggering a reasonable suspicion of
discrimination. Blighton v. Department of the Treasury, EEOC Request
No. 05940483 (November 29, 1994). In this case, the nonselections,
performance appraisals, and awards all had a degree of permanence which
should have triggered appellant's awareness of the duty to assert his
rights under the EEOC Regulations. See Berry v. Board of Supervisors,
715 F.2d 971 (5th Cir. 1983); Duvvuri v. Department of the Navy, EEOC
Request No. 05910556 (August 22, 1991). Therefore, the Commission finds
that the previous decision properly affirmed the agency's dismissal of
allegations 2 through 5.
With regard to allegation 6, EEOC Regulation 29 C.F.R. �1614.107(a)
provides for the dismissal of a complaint or portion thereof which fails
to state a claim within the meaning of 29 C.F.R. �1614.103. An agency
shall accept a complaint from any aggrieved employee or applicant for
employment who believes that he or she has been discriminated against by
that agency because of race, color, religion, sex, national origin, age
or disabling condition. 29 C.F.R.�1614.103; �1614.106(a). Nevertheless,
the Commission finds that allegation 6 merely constitutes a generalized
grievance shared by substantially all or a large class of individuals,
and, as such, is not sufficient to establish standing. See Warth
v. Seldin, 422 U.S. 490 (1975). In so finding, we note that appellant's
allegation would not be sufficient to state a claim of disparate impact.
Specifically, despite his assertions to the contrary, appellant has
not challenged any policy or practice which disproportionately impacts
members of his protected groups. It is noted that, while appellant
indicated that he was seeking compensatory damages, the Commission
has held that, when an allegation fails to show that a complainant is
aggrieved for purposes of Title VII and the EEOC Regulations, it will
not be converted into an actionable claim merely because the complainant
has requested a specific relief. Girard v. Department of the Treasury,
EEOC Request No. 05940379 (September 9, 1994). Thus, the Commission
finds that allegation 6 was also properly dismissed.
The Commission notes that, in his request for reconsideration,
appellant asserted that he also raised an allegation concerning
the informal processing of the instant complaint. Nevertheless,
a review of appellant's formal complaint reveals no such allegation.
While appellant did note, in his complaint, that he was intimidated by
seeing only minority employees working in the EEO Office, the record shows
that appellant received EEO Counseling and was able to file a complaint
which included all of the allegations initially raised. Appellant has
not identified any procedural irregularity warranting the Commission's
intercession in the processing of his complaint. Consequently, based on
our review of the record, we find that appellant has failed to provide
evidence which would warrant a reconsideration of the previous decision.
CONCLUSION
After a review of appellant's request for reconsideration, the previous
decision, and the entire record, the Commission finds that appellant's
request fails to meet the criteria of 29 C.F.R. �1614.407(c), and
it is therefore the decision of the Commission to DENY appellant's
request. The decision in EEOC Appeal No. 01972365 (April 21, 1998)
remains the Commission's final decision. There is no further right of
administrative appeal on a decision of the Commission on this Request
for Reconsideration.
STATEMENT OF RIGHTS - ON RECONSIDERATION
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. 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:
Nov. 4, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat
1The record does not contain a postal return receipt or other evidence
showing when the previous decision was received by appellant. Accordingly
the request for reconsideration is deemed to have been timely filed.