Dennis M. Murphy, Appellant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionNov 8, 1999
01994360 (E.E.O.C. Nov. 8, 1999)

01994360

11-08-1999

Dennis M. Murphy, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Dennis M. Murphy, )

Appellant, )

)

v. ) Appeal No. 01994360

) Agency No. 98-4708

Togo D. West, Jr., )

Secretary, )

Department of Veterans )

Affairs, )

Agency. )

______________________________)

DECISION

On April 28, 1999, appellant filed a timely appeal with this Commission

from a final agency decision (FAD) received on April 17, 1999, pertaining

to a complaint of unlawful employment discrimination pursuant to Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.,

the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29

U.S.C. �621 et seq. and Section 501 of the Rehabilitation Act of 1973,

as amended, 29 U.S.C. �791 et seq. The Commission accepts appellant's

appeal in accordance with EEOC No. 960.001.

The record reflects that on December 4, 1998 appellant initiated contact

with an EEO Counselor. The EEO counselor report states appellant

alleged on April 4, 1998 he was contacted and informed that he had been

selected for an intake specialist position in Bedford MA. However,

shortly thereafter, he was notified that a mistake had been made and

he was not hired for the intake position. Subsequently, management

offered him the position, but he declined. Although, about a week later,

he contacted them saying he would accept the position. Consequently,

management refused his subsequent acceptance.

On or about December 29, 1998 appellant filed a formal complaint alleging

that he was the victim of unlawful employment discrimination on the basis

of sex (male), age (over forty), race (white) and disability (physical).

Therein, appellant alleged that he was not selected for positions in which

he was clearly qualified for. The non selections occurred as follows:

on April 10, 28, 1998; September 30, 1998; November 16, 1998; December

16, 1998. Appellant further alleges constructive discharge and that

management's hiring practice is discriminatory.

On April 12, 1999, the agency issued a final decision. Therein, the

agency found that appellant's complaint was comprised of six allegations

that were identified in the following fashion:

1. Non selection for announcement No. 98-69 in April 1998;

2. Non selection for announcement No. 98-63 in September 1998;

3. Non selection for announcement No. 98-64 in November 1998;

4. Non selection for announcement No. 98-29a in December 1998;

5. Non selection for announcement N. 98-62 in December 1998 and

6. Constructive discharge for the intake specialist position in April

1998.

The agency dismissed allegations one and six. The agency found, as per

allegation one, that appellant failed to initiate contact with an EEO

Counselor within forty-five days of the alleged action. As per allegation

six, the agency found that appellant is still currently employed at the

agency so therefore no constructive discharge has occurred. However,

the agency did accept allegations two thru five. It is from this decision

that appellant appeals.

On appeal, appellant argues that he has not received any notification

of his non selection or rejection of his offer of acceptance for the

intake specialist position in April 1998. And that the above is no

different than from the other investigator positions in which he was

not selected for and did not receive official notice of, which allotted

for the limitations period to be extended by the agency. Therefore,

the limitations period should also be extended for allegation one.<1>

The agency, in their decision, properly dismissed allegation one

based on untimely contact with an EEO counselor. 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. Here, the effective date

of the personnel action is on or about April 30, 1998 when appellant

was verbally informed that the agency would not accept his offer to

be placed in the Bedford office as an intake specialist. Therefore,

appellant's EEO contact on December 4, 1998 was untimely. Accordingly,

the agency's decision to dismiss allegation one for failure to initiate

timely contact with an EEO Counselor was proper and is AFFIRMED.

As per allegation six, constructive discharge, the Commission finds that

appellant was not constructively discharged. In determining whether

constructive discharge has occurred, the Commission has adopted

a three-pronged test for establishing a constructive discharge. An

appellant must show that: (1) a reasonable person in appellant's position

would have found the working conditions intolerable; (2) conduct which

constituted prohibited discriminatory treatment created the intolerable

working conditions; and (3) appellant's involuntary resignation resulted

from the intolerable working conditions. See, DeMeuse v. United

States Postal Service, EEOC No. 01950324 (May 22, 1997). Here, it

is clear, that appellant has not involuntarily resigned and in fact,

he is still currently employed with the agency therefore, he has not

been constructively discharged. Accordingly, the agency's decision to

dismiss allegation six was proper and 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:

November 8, 1999

____________________________

DATE Carlton M. Hadden, Acting Director

1The agency, by letter dated October 30, 1998, notified appellant

that he rejected the job offer for announcement 98-69. However,

there are no return receipts to establish when the letter was

actually received by appellant.