0120070277
03-10-2009
Thomas E. Ivanyi, Complainant, v. Shaun Donovan, Secretary, Department of Housing and Urban Development, Agency.
Thomas E. Ivanyi,
Complainant,
v.
Shaun Donovan,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 0120070277
Agency No. EEO-06-086
DECISION
Upon review, the Commission finds that the agency's decision dated
September 11, 2006, dismissing complainant's complaint due to untimely
EEO Counselor contact is proper pursuant to 29 C.F.R. � 1614.107(a)(2).
In his complaint, dated July 25, 2006, complainant alleged discrimination
based on age (over 40) and disability (50% service connected) when: (1)
he learned on April 12, 2006, of a response to a Freedom of Information
Act (FOIA) request that showed a factual basis for his belief that
discrimination was a factor in his non-selection for the position of
Supervisory Enforcement Analyst, GS-1101-14, announced under Vacancy
Announcement Numbers 04-MSA-2004-0036 (MSA) and 04-DEU-2004-0023 (DEU);
and (2) the Human Resource Division, Atlanta, Georgia, rejected his
application for Vacancy Announcement Number 04-MSA-2004-0036, in violation
of the Office of Personnel Management VetGuide because he submitted the
application after the closing date.
With regard to claim (1) of the position under DEU announcement, the
record indicates that complainant was notified via letter dated December
10, 2004, from the agency that no selections were made. With regard to
claim (2), the record also indicates that complainant was notified via
letter dated November 18, 2004, from the agency that his application
was received after the closing date and he would not receive further
consideration. Complainant, however, did not contact an EEO Counselor
with regard to the nonselections until April 12, 2006, which was beyond
the 45-day time limit set by the regulations. On appeal, complainant
contends for the first time that he did not become aware of discrimination
until April 12, 2006, when he received the agency's last response to
his several FOIA requests he made after the nonselections at issue.
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
reasonably should have suspected discrimination, but before all the
facts that would support a charge of discrimination have become apparent.
Complainant indicates that on March 24, 2005, he initially submitted
a FOIA request to obtain all releasable information regarding the
announcements at issue. On appeal, complainant acknowledges that he
received the agency's response dated April 18, 2005, which included the
selectee's SF-50 and application material and the applicant eligibility
forms for both MSA and DEU announcements. In response, the agency
indicates that the April 18, 2005 FOIA information along with the fact
that complainant worked in the same office as the selectee and was
thus able to observe him, was sufficient that complainant should have
reasonably suspected discrimination more than 45 days before contacting
an EEO Counselor on April 12, 2006. Despite his contentions on appeal,
we also find that complainant fails to present adequate justification
to warrant an extension of the applicable time limit for contacting an
EEO Counselor.1
The agency's final decision dismissing complainant's complaint on
timeliness grounds is AFFIRMED.2
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
3/10/09
__________________
Date
1 The agency submits a copy of its intranet website which specifically
includes the 45-day time limit to contact an EEO Counselor at the time of
the alleged incidents, thereby demonstrating complainant's constructive
knowledge under the regulations.
2 We note that although the agency also dismissed claim (2) on the
alternative grounds for failure to state a claim pursuant to 29 C.F.R. �
1614.107(a)(1), we need not address such since its dismissal is affirmed
due to untimely EEO Counselor contact.
??
??
??
??
2
0120070277
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013