01A00693_r
05-25-2001
David C. Bender, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
David C. Bender v. Department of Transportation
01A00693
May 25, 2001
.
David C. Bender,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A00693
Agency No. DOT-6-99-6069
DECISION
Upon review, the Commission finds that the agency's decision dated
September 21, 1999, dismissing complainant's complaint was proper
pursuant to 29 C.F.R. � 1614.107(a)(2). Complainant alleges that he was
discriminated against on the bases of sex, age, disability, and reprisal
when, on March 9, 1999, he learned that false and damaging information,
including medical and social security information was illegally released
by the agency to deliberately inflict financial and emotional harm
by bringing his career in the military reserve to a premature end.
Complainant did not initiate contact with an EEO Counselor until April
14, 1999. The agency dismissed the complaint for untimely EEO Counselor
contact, finding that complainant reasonably suspected discrimination
when, on January 20, 1999, he was contacted for an interview by the
United States Marine Corps (USMC) for a USMC investigation regarding
medical information.
The record indicates that shortly into the interview, complainant asked
the USMC official what information, if any, had been revealed by the
agency to support the questions. The USMC official refused to answer.
Thereafter, complainant submitted a Freedom of Information Act (FOIA)
request to the USMC. Complainant argues that it was not until receiving
the FOIA response on March 9, 1999, that he suspected discrimination.
However, according to a documented summary of the interview, complainant
told the investigator that he thought the investigation was initiated
by management since they were unhappy with an arbitration ruling in his
favor and were trying to �get back at him.� Therefore, we find that
complainant reasonably suspected discrimination at the time of the
interview, on January 20, 1999, which renders his EEO contact beyond
the 45-day limitation.
The agency's decision dismissing complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 25, 2001
__________________
Date