01992068
06-02-1999
Robert J. Zaytsow, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Robert J. Zaytsow v. Department of the Air Force
01992068
June 2, 1999
Robert J. Zaytsow, )
Appellant, )
) Appeal No. 01992068
v. ) Agency No. MUOF96249
)
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
)
DECISION
On December 15, 1998, appellant filed a timely appeal of a December 7,
1998 final agency decision dismissing his complaint for failure to
contact an EEO Counselor in a timely manner.
As an initial matter, the Commission notes that the present complaint
was the subject of a prior final agency decision (FAD-1). In FAD-1, the
agency identified the dismissed allegations of the May 11, 1996 complaint
as whether appellant was discriminated against on the bases of age (over
40) and in reprisal when the following occurred: (1) from September
1989 until July 1994, appellant was denied a competitive promotion by
being consistently and unfairly given lower annual performance ratings
than what he deserved;<1> and (2) the agency retaliated against him
for communicating with his Congressman about his age discrimination
allegations in March 1994, when he was denied a noncompetitive promotion
in 1994. In dismissing the allegations for untimely EEO contact, the
agency stated that because appellant did not contact an EEO Counselor
until August 13, 1996, the contact was beyond the 45-day time limitation
and appellant did not offer justification sufficient to extend the
time period.
Appellant appealed FAD-1 to the Commission. Zaytsow v. Department of the
Air Force, EEOC Appeal No. 01971958 (November 24, 1998). In his appeal
of FAD-1, appellant argued that he contacted an EEO Counselor in April
1994 and was misled by the Counselor. Appellant asserted that the EEO
Counselor informed him that he could attempt to resolve the matter with
his supervisor or challenge his failure to receive a noncompetitive
promotion with the Office of Personnel Management and that if those
actions failed, he could return to the EEO process. The Commission
found in the prior decision that appellant should have had a reasonable
suspicion of discrimination in 1994. However, the Commission vacated
and remanded FAD-1 because the agency failed to address appellant's
argument that he had contacted an EEO Counselor regarding the dismissed
allegations in April 1994. On remand, the agency was specifically ordered
to supplement the record with an affidavit from the 1994 EEO Counselor
addressing whether appellant had raised the dismissed allegations and
addressing whether appellant was informed that he could attempt to resolve
the matter outside of the EEO process and then return to the EEO process
later. The agency was also ordered to obtain all relevant notes from
the 1994 EEO Counselor addressing appellant's 1994 EEO Counselor contact.
The agency was further ordered to issue a new agency decision or process
the complaint after its investigation was completed.
The agency issued a new final decision (FAD-2) which is the subject of
the present appeal. In FAD-2, the agency again dismissed the complaint
for untimely EEO contact on the grounds that he did not initiate EEO
contact until August 13, 1996.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that an aggrieved
person initiate contact with an EEO Counselor within 45 days of the
date of the matter alleged to be discriminatory or, in the case of a
personnel action, within 45 days of the effective date of the action.
EEOC Regulation 29 C.F.R. �1614.105(a)(2) provides that the agency or the
Commission shall extend the 45-day time limit when the individual shows
that he or she was not notified of the time limits and was not otherwise
aware of them, that he or she did not know and reasonably should not have
known that the discriminatory matter or personnel action occurred, that
despite due diligence he or she was prevented by circumstances beyond his
or her control from contacting the counselor within the time limits, or
for other reasons considered sufficient by the agency or the Commission.
EEOC Regulation 29 C.F.R. �1614.604(c) provides that the time limits in
Part 1614 are subject to waiver, estoppel and equitable tolling.
Upon review, we find that appellant failed to contact an EEO Counselor in
a timely manner. As found in the Commission's prior decision, appellant
had a reasonable suspicion of discrimination in 1994. We find that
appellant did not initiate EEO Counselor contact regarding allegation
(2) until August 13, 1996, as reflected in the November 14, 1996
Final Report of the EEO Counselor. We find further that the earliest
appellant referenced allegation (1), the performance ratings allegation,
was in November 1994, during EEO counseling initiated on November 21,
1994 in another informal complaint. In a March 5, 1994 letter to his
Congressman which appellant submitted to the EEO Counselor (Counselor
A) during EEO counseling on the November 21, 1994 informal complaint,
appellant discussed his performance ratings.<2> The performance ratings
were also mentioned in appellant's November 19, 1995 declaration in
a Report of Investigation that resulted from appellant having filed
a formal complaint following the completion of EEO counseling on the
November 1994 informal complaint. Accordingly, we find that appellant's
contact regarding the dismissed allegations was untimely and appellant
has not provided justification sufficient to extend the time limit.
The Commission is not persuaded that appellant first contacted an EEO
Counselor in April 1994, regarding the dismissed allegations. The record
contains the November 30, 1998 statement of the 1994 EEO Counselor which
was submitted as a result of the Commission's order in the prior decision.
The 1994 EEO Counselor stated that on April 7, 1994, appellant contacted
him and he advised him of his EEO rights under part 1614. The Counselor
further stated that appellant only identified the issue of the grade
classification of his position. The Counselor informed appellant that if
he disagreed with the classification of his position, he could appeal the
matter to the Office of Personnel Management. The EEO Counselor further
stated that appellant did not raise the issue of performance ratings and
he did not file a precomplaint. The EEO Counselor also denied having
misled appellant about his EEO rights. The record also contains an April
7, 1994 Initial Interview Report of the 1994 EEO Counselor. The only
issue identified in the Report is appellant's grade classification.
Finally, to the extent that appellant may be challenging the EEO process
regarding the December 22, 1994 formal complaint filed following the
November 1994 counseling, the Commission notes that we have held that an
employee cannot use the EEO complaint process to lodge a collateral attack
on another forum's proceeding. An allegation can be characterized as
a collateral attack where it involves a challenge to another forum's
proceedings, such as the grievance process, the EEO process in a
separate case, the unemployment compensation process, the workers'
compensation process, the tort claims process, and so forth. See Story
v. U.S. Postal Service, EEOC Request No. 05960314 (October 18, 1996);
Fisher v. Department of Defense, EEOC Request No. 05931059 (July 15,
1994).
Accordingly, consistent with our discussion herein, the agency's final
decision is hereby 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. 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:
June 2, 1999
DATE Carlton M. Hadden, Acting Director
1The record reflects that the subject of allegation (1) is appellant's
performance appraisals. Appellant, a grade level 9, alleged that his
supervisors informed him that under the performance appraisal system,
there was only a limited number of evaluative points to distribute among
employees. Because other employees had lower grades than appellant, he
was allegedly told by his supervisors that they would use the available
points to provide higher appraisal ratings for those employees so that
those employees could rise to a grade 9. Appellant also alleged that he
was also informed by his supervisors that they would leave only enough
evaluative points for him to receive appraisals of "fully satisfactory"
and that eventually, he and the other employees would reach a grade 11
noncompetitively. Because he received only fully satisfactory appraisals,
appellant alleges that he could not be promoted noncompetitively.
2Appellant filed a December 22, 1994 formal complaint in that matter.
The agency's final decision therein was appealed to the Commission.
The appeal was docketed by the Commission as EEOC Appeal No. 01952153
and decided on September 27, 1995.