William J. Malinowski, Appellant,v.Janet Reno, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity CommissionJun 24, 1999
05980111 (E.E.O.C. Jun. 24, 1999)

05980111

06-24-1999

William J. Malinowski, Appellant, v. Janet Reno, Attorney General, Department of Justice, Agency.


William J. Malinowski v. Department of Justice

05980111

June 24, 1999

William J. Malinowski, )

Appellant, )

)

v. ) Request No. 05980111

) Appeal No. 01966461

Janet Reno, ) Agency No. F-96-4791

Attorney General, )

Department of Justice, )

Agency. )

______________________________)

DENIAL OF REQUEST FOR RECONSIDERATION

On October 21, 1997, William J. Malinowski (appellant) initiated

a request to the Equal Employment Opportunity Commission (EEOC)

to reconsider the decision in William J. Malinowski v. Janet Reno,

Attorney General, Department of Justice, EEOC Appeal No. 01966461

(September 26, 1997). EEOC Regulations provide that the Commissioners

may, in their discretion, reconsider any previous Commission 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

misapplication of established policy, 29 C.F.R. �1614.407(c)(2); and the

previous 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 is whether the previous decision properly affirmed

the agency's dismissal of an allegation in appellant's complaint.

BACKGROUND

Appellant initiated EEO counseling on November 9, 1995, and thereafter

filed a formal complaint alleging discrimination based on age (over 40)

and national origin (Polish) when: (1) since 1992 the Career Board has not

granted his requests to serve in the position of Relief Supervisor; and

(2) he was placed in a Temporary Duty assignment on September 30, 1995.

In its final decision (FAD), the agency accepted Issue 2 but dismissed

Issue 1 for untimely EEO Counselor contact. In taking this action,

the FAD rejected appellant's assertion that the denial of his requests

to serve as a Relief Supervisor constituted a continuing violation.

Appellant appealed and the prior decision affirmed the dismissal of

Issue 1. Specifically, the decision found that appellant should have

reasonably suspected discrimination more than 45 days prior to his

initiation of EEO counseling. The decision found that, for that reason,

appellant had not established a continuing violation.

The record reveals that Issue 1 dates back to 1992, when appellant made

several requests to serve as a Relief Supervisor that were not granted

by the Career Board (the Board). Appellant made another request in

February 1995 and was told by his supervisor (the Responsible Official,

RO) in March 1995 that the request had been denied by the Board. In his

request for reconsideration, appellant states that he did not suspect

discrimination until late September 1995 when he learned that the minutes

from the Board's meetings indicated that the Board had never discussed

his requests to be a Relief Supervisor. According to appellant, this

led him to believe that the RO may have been discriminating against him

by not presenting his requests to the Board.

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 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). Furthermore, a request to reconsider is not "a form of second

appeal." Regensberg v. United States Postal Service, EEOC Request

No. 05900850 (September 7, 1990); Spence v. Department of the Army,

EEOC Request No. 05880475 (May 31, 1988).

EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved

person must initiate contact with an EEO Counselor within 45 days of

the date of the matter alleged to be discriminatory or within 45 days of

the effective date of a personnel action. This period may be extended

when the appellant 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 an EEO Counselor within the time

limits; or for other reasons considered sufficient by the agency or

the Commission. 29 C.F.R. �1614.105(a)(2). The Commission has adopted

a "reasonable suspicion" standard (as opposed to a "supportive facts"

standard) for determining whether contact with an EEO Counselor is timely.

Ball v. U.S. Postal Service, EEOC Request No. 05880247 (July 6, 1988).

Under this standard, the regulatory limitations period "is not triggered

until a complainant reasonably suspects discrimination, but before all

the facts that would support a charge of discrimination have become

apparent." Bracken v. U.S. Postal Service, EEOC Request No. 05900065

(March 29, 1990).

Although appellant argues that he did not suspect discrimination until

September 1995, documentation in the record reveals that, in fact,

he suspected it much earlier than that. Specifically, it is apparent

from appellant's complaint that, throughout the period during which his

requests to be a Relief Supervisor were being denied, he was cognizant

that there were a number of younger individuals of non-Polish national

origin who were allowed to serve in that capacity. It is also apparent

from appellant's complaint that he suspected that this was discriminatory.

Based on this evidence, the Commission agrees with the prior decision

and finds that appellant first suspected discrimination more than 45

days prior to his initiation of EEO counseling.

The Commission also agrees that Issue 1 does not constitute a continuing

violation. Specifically, we find that the denials of appellant's requests

to serve as a Relief Supervisor had a degree of permanence that should

have triggered his awareness of the duty to assert his rights. See Berry

v. Board of Supervisors, 715 F.2d 971 (5th Cir. 1983). Furthermore,

the Commission finds that these denials are not related by a common

nexus or theme to the timely allegation raised by appellant, i.e., the

Temporary Duty assignment in which he was placed in September 1995. See

Vissing v. Nuclear Regulatory Commission, EEOC Request No. 05890308

(June 13, 1989).

Accordingly, the Commission agrees that Issue 1 was properly dismissed

as untimely.

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).

Therefore, it is the decision of the Commission to DENY appellant's

request. The decision in EEOC Appeal No. 01966461 (September 26, 1997)

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.

RIGHT TO FILE A CIVIL ACTION (P0993)

This decision of the Commission is final, and there is no further right of

administrative appeal from the Commission's decision. You have the right

to file a civil action in an appropriate United States District Court. 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.

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 24, 1999

Date Frances M. Hart

Executive Officer

Executive Secretariat