01986562
10-12-1999
Stephen J. Katsanos, Appellant, v. Donna A. Tanoue, Chairman, Federal Deposit Insurance Corporation, Agency.
Stephen J. Katsanos v. Federal Deposit Insurance Corporation
01986562
October 12, 1999
Stephen J. Katsanos, )
Appellant, )
)
)
v. ) Appeal No. 01986562
) Agency No. FDIC 98-74
)
Donna A. Tanoue, )
Chairman, )
Federal Deposit Insurance )
Corporation, )
Agency. )
______________________________)
DECISION
On September 1, 1998, appellant filed a timely appeal of a July 31,
1998 final agency decision, which was received by appellant on August 5,
1998, dismissing his complaint, pursuant to 29 C.F.R. ��1614.107(a) and
(b), for stating the same claim that was pending before or decided by
the agency and due to untimely EEO Counselor contact.
In its final decision, the agency identified the allegations
of appellant's June 1, 1998 complaint as whether appellant was
discriminated against based on race (Caucasian), sex (male), and age
(DOB: 8/19/53) when: (1) in December 1995, his supervisor gave his RTC
media responsibilities to a younger white male; (2) in February 1996,
FDIC's Director denied his FDIC media responsibilities; (3) in March 1996,
the Director assigned appellant's duties as FDIC's Deputy Director, OCC to
a Hispanic female and assigned appellant custodian responsibilities for
the Public Reading Room; (4) on October 31, 1997, the Director issued
him a performance evaluation covering the period November 1, 1996,
through October 31, 1997, containing an overall rating of marginal; and
(5) on March 20, 1998, he received a third step grievance response which
agreed with his February 9, 1998 first step grievance response to deny
his request that the overall rating he received on October 31, 1997,
be changed from marginal to superior.
The agency stated that appellant's March 26, 1998 EEO Counselor contact
with regard to the incidents raised in allegations (1) through (4) was
untimely. The agency indicated that these incidents failed to constitute
a continuing violation since they were sufficiently distinct to trigger
the running of the limitations period. The agency noted that on October
31, 1997, appellant received the performance appraisal at issue, but he
filed a grievance on December 16, 1997, instead of contacting an EEO
Counselor. The agency further noted that only when appellant failed
to receive the desired results at the third stage of the grievance
process on March 20, 1998, did he decide to seek EEO counseling.
In addition, the agency pointed out that the EEO Counselor's Report
indicated that appellant acknowledged that he was aware that he might
have been discriminated against with respect to allegations (1) through
(4), but he chose not to initiate EEO counseling because of his position
as a Deputy Director. With regard to allegation (5), the agency stated
that it concerned the same matter raised in allegation (4) and, therefore,
the agency dismissed allegation (5), pursuant to 29 C.F.R. �1614.107(a),
for stating the same claim pending before or decided by the agency.
It is noted that although the agency dismissed allegation (5) for stating
the same claim that was pending before or decided by the agency, we,
upon review, find that it is more properly dismissed for failure to
state a claim.
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may dismiss
a complaint which fails to state a claim pursuant to 29 C.F.R. �1614.103.
In order to establish standing initially under 29 C.F.R. �1614.103, a
complainant must be either an employee or an applicant for employment of
the agency against which the allegations of discrimination are raised.
In addition, the allegations must concern an employment policy or
practice which affects the individual in his/her capacity as an employee
or applicant for employment. The agency shall accept a complaint from any
aggrieved employee or applicant for employment who believes that he/she
has been discriminated against by that agency because of race, color,
religion, sex, national origin, age, or disability. 29 C.F.R. ��1614.103
and .106(a). The Commission's Federal sector case precedent has long
defined an "aggrieved employee" as one who suffers a present harm or loss
with respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
Upon review, we find that allegation (5) fails to state a claim since it
constitutes a collateral attack on the grievance process. The Commission
has held that an employee cannot use the EEO complaint process to lodge a
collateral attack on another proceeding. See Kleinman v. United States
Postal Service, EEOC Request No. 05940585 (September 22, 1994); Lingad
v. United States Postal Service, EEOC Request No. 05930106 (June 24,
1993). The proper forum for appellant to have raised his dissatisfaction
of his third step grievance decision is within that grievance process.
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
is triggered under the EEOC Regulations. See 29 C.F.R. �1614.105(a)(2);
Ball v. United States Postal Service, 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 have become apparent.
Upon review, we find that allegations (1) through (4) occurred on
or prior to October 31, 1997, but appellant did not contact an EEO
Counselor until March 26, 1998, which was beyond the 45-day time limit
set by the regulations. Specifically, with regard to the denial of
media responsibilities, appellant states on appeal that in December 1995,
his supervisor told him that the Chairman was "comfortable" with using a
younger (white, male) member of the OCC's staff as spokesman for FDIC.
Thus, we find that appellant knew or should have reasonably known that
he was discriminated against concerning the subject matter at the time
of the incident.
Although appellant claimed a continuing violation, we find that since
there is no incident which fell within the time period for contacting an
EEO Counselor, the complaint fails to constitute a continuing violation.
See McGivern v. United States Postal Service, EEOC Request No. 05901150
(December 28, 1990); Starr v. United States Postal Service, EEOC Appeal
No. 01890412 (April 6, 1989). Furthermore, we note that each of the
alleged discriminatory incidents, i.e., the removal and the denial of
his duties/responsibilities and a performance appraisal, were separate
and discrete incidents, which should have triggered any suspicion of
discrimination at the time they occurred. See Valentino v. United States
Postal Service, 674 F.2d 56 (D.C. Cir. 1982); Clark v. Olinkraft, Inc.,
556 F.2d 1219 (5th Cir. 1977), cert. denied, 434 U.S. 1069 (1978).
Specifically, with regard to allegation (4), concerning appellant's
performance appraisal, we find that appellant filed a grievance on
December 16, 1997, instead of contacting an EEO Counselor. The Commission
has held that the use of the negotiated grievance procedure does not
toll the time limits for contacting an EEO Counselor. See Schermerhorn
v. USPS, EEOC Request No. 05940729 (February 10, 1995).
On appeal, appellant contends that the fear of reprisal from the
agency prevented him from initiating EEO counseling in a timely manner.
The Commission has determined that fear of reprisal, without more, will
not toll the applicable EEO time limitations. Croft v. Department of the
Army, EEOC Request No. 05970699 (August 1, 1997). Based on the foregoing,
we find that appellant failed to present adequate justification to warrant
an extension of the applicable time limit for contacting an EEO Counselor
pursuant to 29 C.F.R. �1614.105(a)(2).
Accordingly, 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:
October 12, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations