0120112623
10-11-2011
Randolph S. Koch, Complainant, v. Mary L. Schapiro, Chairman, Securities and Exchange Commission, Agency.
Randolph S. Koch,
Complainant,
v.
Mary L. Schapiro,
Chairman,
Securities and Exchange Commission,
Agency.
Appeal No. 0120112623
Agency No. 000112011
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dismissing a formal complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
The record indicated that Complainant, a former Agency employee, contacted the Agency's EEO office to initiate EEO counseling on November 26, 2010. Informal efforts to resolve Complainant's concerns were unsuccessful.
On February 15, 2011, Complainant filed a formal complaint. Therein, Complainant claimed that he was discriminated against on the bases of race (Caucasian), religion (Jewish), disability (physical), age (+40), and in reprisal for prior protected activity when:
(1) the Agency failed to process his retirement application and pay its share of his temporary continuation of coverage premiums; and
(2) Complainant further alleged that the Agency discriminated against him in the basis of disability regarding the manner in which the Agency processed an earlier filed complaint (SEC No. 05-09-09).
In its March 15, 2011 final decision, the Agency dismissed claim (1) on the grounds of untimely EEO Counselor contact. Specifically, the Agency found that on November 2009, Complainant wrote to the Agency's Human's Resource office to process a retirement application and insurance subsidy. The Agency noted that Complainant indicated that after not hearing from the Agency, he contacted a Human Resource official (Ms. L) on December 2009, concerning the status of his retirement application and insurance subsidy. Complainant stated that after he did not hear back about the status of his applications, he sent an e-mail to Ms. L on March 18, 2010, concerning the status of both applications, but that she never responded to the e-mail. Complainant stated that Ms. L assured him that she was going to process his retirement application but that she never did. The Agency concluded that Complainant reasonable suspected discrimination at least since March 18, 2010, when he became aware that he was not receiving retirements benefits or any payments in his health insurance subsidy, and that his November 26, 2010 EEO Counselor's contact was untimely.
The Agency dismissed claim (2) pursuant to 29 C.F.R. � 1614.107(a)(8) for alleging dissatisfaction the processing of his prior EEO complaint.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the Commission should consider the Agency's on-going failure to process his retirement application and failure to pay his health insurance subsidy, as a continuing or recurring violation. Complainant further appears to question the constitutionality of 29 C.F.R. � 1614.107(a) (8), which provides for dismissal of a claim relating to the processing of a prior complaint.
The Agency requests that the Commission affirm its final action. The Agency contends that claim (1) is not a recurring violation, and find no merit in Complainant's assertion that the regulation prohibiting such a claim is unconstitutional.
ANALYSIS AND FINDINGS
Claim (1)
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.
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.
Complainant should have reasonably suspected discrimination as of March 18, 2010 (after the last e-mail he send to the Agency), in light of his assertion that the Agency failed to respond to his request to process his retirement and health benefits since November 2009. Complainant argues that the Commission should consider the Agency's on-going failure to process his retirement application and its failure to pay his health benefits subsidy a continuing or recurring violation. We find, however, that these actions constitute discrete acts, after which Complainant was obligated to present his claims for counseling within the established time limitations.
Complainant further alleges that his untimeliness of EEO contact should be waived for equitable considerations. Specifically, Complainant stated that a lengthy hospitalization and recuperation in May and June 2010 prevented him from timely contacting an EEO Counselor. When a Complainant claims that a physical, psychiatric or psychological condition prevented him from meeting a particular deadline, the Commission has held that, in order to justify untimeliness, the Complainant must have been so incapacitated by the condition as to rendered them unable to comply with the deadline. See Zelmer v. USPS, EEOC Request No. 05890164 (March 8. 1989); and Crear v. USPS, EEOC Request No. 05920700 (October 29, 1992). Here, we find no evidence that would indicate that Complainant was too incapacitated to comply with the 45-day time limitation. Likewise, we noted that Complainant fails to explain why he waited until November 26, 2010, more than four months after his June 2010 hospitalization, before he initiated EEO Counselor contact. Complainant's initial EEO contact in November 26, 2010 was therefore untimely.
Claim (2)
EEOC Regulation 29 C.F.R. � 1614.107(a)(8) provides that an Agency shall dismiss claims alleging dissatisfaction with the processing of a prior complaint. Dissatisfaction with the EEO process must be raised within the underlying complaint, not a new complaint. See EEOC -- Management Directive 110 (as revised Nov. 9, 1999) 5-23, 5-25 to 5-26.
A review of the record reveals that the instant claim focuses on complainant's dissatisfaction with the processing of his prior EEO complaint (Agency Nos. 05-09-09). Therefore, the Commission finds that the Agency properly dismissed the instant claim pursuant to 29 C.F.R. � 1614.107(a)(8).
As a final matter, Complainant appears to argue on appeal that this regulation is unconstitutional. We note that the Commission has no jurisdiction to make determinations regarding the constitutionality of an Agency's regulations. In cases such as this, the Commission's role is to uniformly applied its regulations and laws to promote equal employment opportunity. See Barela v. Department of State, EEOC Request No. 06890194 (March 9, 1989).
CONCLUSION
The Agency's final decision dismissing Complainant's formal complaint for the reasons stated herein is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
10/11/2011
__________________
Date
2
0120112623
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013