01995069
10-27-1999
Cosmo L. Paone, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Cosmo L. Paone v. Department of Transportation
01995069
October 27, 1999
Cosmo L. Paone, )
Appellant, )
)
v. )
) Appeal No. 01995069
Rodney E. Slater, ) Agency No. 2-98-2139
Secretary, )
Department of Transportation, )
Agency. )
______________________________)
DECISION
On June 10, 1999, appellant filed a timely appeal with this Commission
from a final agency decision (FAD), dated May 7, 1999, dismissing five
allegations from his complaint. The Commission accepts the appeal in
accordance with EEOC Order No. 960, as amended.
On April 30, 1998 appellant contacted and EEO Counselor regarding
allegations of discrimination based on reprisal. Informal efforts to
resolve appellant's concerns were unsuccessful. Accordingly, appellant
filed a formal complaint on August 13, 1998.
In its FAD, the agency defined the allegations as follows:
In April 1998 appellant was informed that a private contractor had been
hired to intervene in appellant's Branch to conduct "Conflict Resolution"
despite the fact that many other Branch Chiefs faced numerous complaints
and had not been subjected to this action;
The Engineering Logistics Command (ELC) Executive Director strategically
planned to meet with appellant while contact was made with his employees
to solicit complaints against appellant in his absence;
In December 1996 appellant's second line supervisor appointed appellant
as Building Manager for the Ordinance Road Facility and Annex as a
collateral-duty and harassed appellant during his attempts to carry out
the collateral duty assignments when he: a) ordered appellant to change
light bulbs, b) expected appellant to commute to his building during
the early morning hours whenever a snow storm was in progress, and c)
requested that appellant relocate up to seven wall-mounted Bulletin
Boards around the building;
In January 1997, the Assistant Division Chief, Equipment Management
Division, ELC, ordered appellant not to contact his servicing personnel
representative in the civilian personnel office, which resulted in a
denial of personnel services afforded to all other Branch Chiefs;
In March 1997, appellant was informed by a member of his staff that
the ELC Executive Director requested that she report to him regularly
regarding appellant's "management style" which appellant believes
was an attempt to undermine his authority and accumulate any negative
information to be used against him;
In June 1997, the Chief of the ELC Platform Division took a three to
five minute stroll through appellant's Branch when appellant was on
leave and recommended that appellant be removed as Branch Chief;
On May 29, 1998, the ELC Executive Director issued what was construed
by appellant as a threat to both his current position as Branch Chief
and his future prospects for advancement when he stated that appellant
was an "Autocratic Supervisor" and that "there was no future for that
in the Government?".
The agency issued a FAD accepting allegations 1 and 2 for further
processing and dismissing allegations 3 - 7. The FAD dismissed
allegations 3 - 6 for untimely counselor contact, indicating that
the events were discrete acts that should have triggered appellant's
awareness. The agency also dismissed allegations 5 and 6, as well as
allegation 7, for failure to state a claim.
On appeal, appellant argues that his appeal is confined to the agency's
decision to dismiss allegations 3 and 4. We therefore determine that,
with regard to allegations 5, 6, and 7, the agency's decision to dismiss
these allegations was proper and is AFFIRMED.
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 Ball v. USPS, EEOC Request
No. 05880247 (July 6, 1988). 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 she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
On appeal, appellant argues that at the time that the matters raised in
allegations 3 and 4 purportedly occurred, he did not yet realize that
"they were the beginning of what was to become an obvious pattern of
reprisal." The Commission finds, however, that appellant should have
reasonably suspected discrimination more than forty-five days before his
EEO Counselor contact. In his formal complaint, appellant stated that
one month prior to the matter addressed in allegation 4 purportedly
occurred, an Assistant Chief had indicated that after appellant had
settled a prior complaint " . . . the Command hates him." Further,
appellant has not indicated what prompted him to contact the counselor
approximately two years (allegation 3) and one year (allegation 4) after
the alleged incidents. Therefore, the Commission finds that appellant
contacted the EEO Counselor beyond the time limitation and has failed
to present sufficient reason for extending the time limit. Accordingly,
the agency's decision dismissing allegations 3 and 4 is 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. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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:
10/27/1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations