Eugene Ward, Appellant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionJan 8, 1999
01973161 (E.E.O.C. Jan. 8, 1999)

01973161

01-08-1999

Eugene Ward, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Eugene Ward v. Department of the Navy

01973161

January 8, 1999

Eugene Ward, )

Appellant, )

)

v. ) Appeal No. 01973161

) Agency No. DON 97-65889-001

Richard J. Danzig, )

Secretary, )

Department of the Navy, )

Agency. )

______________________________)

DECISION

INTRODUCTION

On February 27, 1997, appellant filed a timely appeal from the agency's

January 28, 1997 final decision (FAD-3),<1> received on January 30, 1997,

which dismissed appellant's EEO complaint alleging violations of Title VII

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

accept appellant's appeal pursuant to EEOC Order No. 960, as amended.

ISSUE PRESENTED

The issue presented herein is whether the agency properly dismissed

appellant's complaint for untimely EEO Counselor contact and failure to

state a claim.

BACKGROUND

The record in this matter is not entirely clear, for reasons discussed,

in part, below. The salient facts appear to be as follow. Appellant, a

former employee of the agency, initiated EEO Counselor contact on October

25, 1996, according to the EEO Counselor's report (ECR). Appellant filed

a formal EEO complaint dated January 13, 1997, alleging discrimination

based on race (African-American), and reprisal. Appellant's complaint

itself was not entirely clear, either. His complaint contained an

attached narrative, dated January 13, 1997, comprising seven typewritten

pages that set forth numerous allegations dating back to December 1992,

and that stated, inter alia, that appellant had filed an EEO complaint

dated September 11, 1992, apparently under agency case number DON

92-65889-044, wherein appellant alleged discrimination for prohibited

reasons.<2>

FAD-3, which is not wholly clear, dismissed appellant's complaint for

failure to state a claim and untimely EEO Counselor contact, pursuant

to 29 C.F.R. ��1614.107(a) and .107(b), respectively. FAD-3 referenced

FAD-1 under agency case number DON 95-65889-010. FAD-1, as FAD-3 notes,

was the subject of a prior Commission decision. See Ward v. Department

of the Navy, EEOC Appeal No. 01954535 (August 12, 1996) (hereinafter,

"Ward I"). We briefly visit Ward I for the purpose of clarity and to

provide context for the present decision now on appeal (i.e., FAD-3).

Ward I identified the following three issues:

(1) on January 31, 1995, appellant was not selected for the position

of Environmental Specialist (ES) at the Naval Aviation Depot (NADEP),

Pensacola (Florida);

(2) appellant was not given the same opportunity as Caucasian males with

less than one year of experience and training to register in the Priority

Placement Program (PPP) as a GS-0028-9 Environmental Protection Specialist

(EPS); and

(3) since November 16, 1992, management willfully perpetuated an

established and continuous pattern of arbitrarily placing Caucasian

employees on a set of duties with a named private contractor.

Ward I reversed and remanded FAD-1 when the agency dismissed appellant's

April 7, 1995 EEO complaint for failure to state a claim (allegation

(1)) and failure to bring issues (allegations (2) and (3)) to the

attention of an EEO Counselor in accordance with 29 C.F.R. �1614.107(b).

FAD-1 advised appellant to contact an EEO Counselor if he wanted to

pursue those issues (2) and (3). Ward I ordered the agency to conduct

a supplemental investigation for the purpose of determining "whether

appellant was an 'applicant for federal employment.'"

It appears that the agency issued FAD-2 on October 16, 1996, again

dismissing appellant's April 7, 1995 complaint. It also appears that

appellant received FAD-2 on October 27, 1996. Although FAD-2 is not

the subject of the present appeal, and, therefore, we decline to address

it, we reference FAD-2 for the purpose of clarifying the present record

within the context of FAD-3, which is now before us.

FAD-2 dismissed allegation (1), referenced above, on the grounds that

appellant was not an applicant for federal employment. FAD-2 advised

appellant, as to allegations (2) and (3) referenced above, that he

had yet to bring those issues to the attention of an EEO Counselor and

offered him the opportunity to do so.

We now turn to FAD-3, the subject of the present appeal. FAD-3 declared

that appellant had initiated EEO counseling on October 25, 1996. FAD-3

identified, in relevant part, the following allegations in appellant's

EEO complaint:

(1) In a continuing pattern and practice of discrimination, [appellant

was] not given the same opportunity as Caucasian males with less than one

year of experience and training to register in the Priority Placement

Program (PPP) as a GS-0028-09, Environmental Protection Specialist

[EPS]. [Appellant believes he was] denied the same opportunities as

Caucasian males when they were given positions of [EPS], GS-0028-09.

[Appellant states] that this gave Caucasian males the opportunity to

receive on-the-job training and exposure to the [EPS] field.

(2) From December 1992, [appellant was] one of several African American

employees who requested an opportunity to acquire training and experience

as part of a hazardous material team, which was established during that

time. Management responded to the request by attempting to discourage

[his] interest by claiming performing hazardous material duties would

not ever lead to a permanent assignment which was a deliberate lie.

(3) From February 1993, Management discouraged [appellant's] interest

by claiming [his] grade of WG-10 was too high, and that a WG-5 Helper

should be performing the job that [appellant] occupied in the Hazardous

Material (HAZMAT) Control Center (HMCC).

(4) On 30 September 1996[,] [appellant] allege[d] [he was] constructively

discharged from [his] temporary position as a WG-3502 Laborer at the

Facilities and Maintenance Division (FMD), Naval Air Station (NAS)

Pensacola.

FAD-3 dismissed allegations (1)-(3) for untimely EEO Counselor contact in

accordance with relevant portions of 29 C.F.R. �1614.107(b). FAD-3 stated

that appellant's October 25, 1996 EEO Counselor contact was beyond

the 45 days time limitation set forth at 29 C.F.R. �1614.105(a)(1).

The FAD found no allegation to be timely so as to extend the applicable

time limitations under the continuing violation theory. The FAD noted

appellant's allegation, in his January 13, 1997 formal EEO complaint, that

a named Human Resources Office Staffing Specialist (HROSS), on February

2, 1994, "told [appellant] that [appellant] could not register for the

[EPS] position due to [appellant's] being assigned to a set of duties

vice working from a designated position description [PD]." With regard

to allegations (2) and (3), FAD-3 averred that these allegations arose in

December 1992, and February 1993. The FAD indicated that appellant had

been reassigned, effective April 3, 1994, to the Naval Aviation Depot

(NAVAVNDEPOT),<3> Cherry Point, North Carolina. FAD-3 determined,

therefore, that "any incident involving registration on the PPP could

not have occurred after [appellant was] reassigned."

FAD-3 also dismissed allegations (2) and (3) for failure to state a

claim, pursuant to 29 C.F.R. �1614.107(a), in relevant part. The agency,

in FAD-3, found that appellant had failed to demonstrate he had been

harmed by the alleged remarks of management officials.

Finally, FAD-3 dismissed allegation (4), pursuant to 29 C.F.R.

�1614.107(b), in relevant part, on the grounds that appellant had not

raised that issue with an EEO Counselor. FAD-3 advised appellant to

seek counseling regarding allegation (4) as it pertained to appellant's

"employment with FMD, NAS Pensacola."<4>

CONTENTIONS ON APPEAL

Appellant's appeal is not entirely clear, referencing inter alia other

matters. The gravamen of his appeal appears to be that he should be

permitted "to untimely seek EEO counseling" on the grounds of "equitable

tolling or waiving the" applicable time limitations. Appellant appears

to be arguing, for example, that, effective April 1994, he was reassigned

to NADEP Cherry Point and requested to be returned to NADEP Pensacola

"to be placed on a set of duties as a Hazardous Waste Coordinator for

93000 Division[<5>] no later than 14 August 1994." Appellant further

avers that he "also requested registration in the PPP and to remain in

the program until a job offer was made, or NADEP Pensacola closed."<6>

Appellant claims that he informed the agency "that if my request was

denied, I would have no other choice but to resign from the Federal

government and seek legal assistance. This request is clearly a request

for re-employment."

Appellant also argues that he only became aware he "could file on the

issue of not receiving the same training and opportunity as fellow

Caucasian employees who also worked on a set of duties," when appellant

met with his named representative [NR]. Appellant indicates that NR had

filed her own EEO complaint, which "was made a part of the record on the

non-selection of African Americans in the [EPS] field." Appellant asserts

that he "brought this issue to the attention of [a named] EEO Counselor

[NC], who "knew that I had taken a workload transfer to NADEP Cherry

Point and that I could not have know [sic] about the complaint brought by

[NR]." It appears appellant has identified the agency case number for

NR's complaint as DON 94-65889-045.

The gravamen of the agency's response to appellant's appeal is essentially

a reprise of its findings and conclusions in FAD-3. The agency argues

inter alia that appellant has failed to provide sufficient justification

for an extension of the applicable time limitations. The agency also

argues that appellant has failed to show how the purported remarks of

management harmed him.

ANALYSIS AND FINDINGS

As a threshold matter, we find appellant has not challenged on appeal the

agency's framing of his complaint. Thus, we limit our determination

to those four issues specifically addressed in FAD-3. We first address

the agency's timeliness findings with a review of the applicable law

and regulations.

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

person must initiate contact with an EEO Counselor within 45 days

of the date of the matter or effective date of the personnel action

alleged to be discriminatory. The 45 day time limit shall be extended

when appellant shows s/he did not know and reasonably should not have

known that the discriminatory matter or personnel action occurred.

29 C.F.R. �1614.105(a)(2). The Commission has applied a "reasonable

suspicion" standard to the triggering date for determining the timeliness

of the contact with an EEO Counselor. Cochran v. United States Postal

Service, EEOC Request No. 05920399 (June 18, 1992). Under this standard,

the time period for contacting an EEO Counselor is triggered when the

complainant should reasonably suspect discrimination, but before all

the facts that would support a charge of discrimination may have become

apparent. Id.

The Commission has held that, where, as here, there is an issue of

timeliness, "[a]n agency always bears the burden of obtaining sufficient

information to support a reasoned determination as to timeliness." Guy,

Jr. v. Department of Energy, EEOC Request No. 05930703 (January 4, 1994)

(quoting Williams v. Department of Defense, EEOC Request No. 05920506

(August 25, 1992)). Moreover, where, as here, a complainant alleges

a pattern and practice of discrimination against him, an agency is

obligated to initiate an inquiry into whether any allegations untimely

raised fall within the ambit of the continuing violation theory. Id.

The Commission has determined that the normal time limit for contacting an

EEO Counselor may be suspended if a continuing violation is demonstrated.

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

(June 13, 1989). A continuing violation has been defined as a series of

related acts, one or more of which falls within the limitations period.

Valentino v. U.S. Postal Service, 674 F.2d 56 (D.C. Cir. 1982); Clark

v. Olincraft, Inc., 556 F.2d 1219 (5th Cir. 1977), cert. denied,

434 U.S. 1069 (1978). To establish a continuing violation, one must

show a "long-lasting pattern of like events" similar to a policy of

discrimination (albeit directed against a single individual). Shehedah

v. Chesapeake and Potomac Telephone Co. of Maryland, 595 F.2d 711, 725

(D.C. Cir. 1978) (defendant repeatedly provided negative references on

former employee).

It is also important, in determining whether a claim for a continuing

violation is stated, to consider whether appellant had any prior

knowledge or suspicion of discrimination and the effect of this knowledge.

Sabree v. United Brotherhood of Carpenters and Joiners Local No. 33, 921

F.2d 396 (1st Cir. 1990) (plaintiff who believed he had been subjected

to discrimination had an obligation to file promptly with the EEOC or

lose his claim, as distinguished from the situation where a plaintiff

is unable to appreciate that he is being discriminated against until

he has lived through a series of acts and is thereby able to perceive

the overall discriminatory pattern). The key to a viable continuing

violation complaint is the interrelatedness of the acts that are alleged

to be discriminatory. Scott v. Claytor, 469 F.Supp. 22, 25 (D.D.C. 1978).

In a failure to promote case, for example, the necessary interrelatedness

may be established by showing, e.g., that the positions sought were the

same or substantially similar and that the same officials were involved

in the selections. Scott v. Claytor, supra, 469 F. Supp. at 26.

In Berry v. Board of Supervisors of L.S.U., 715 F.2d 971, 981

(5th Cir. 1983), the Court set forth three factors relevant to the

determination of whether a continuing violation exists:

The first is subject matter. Do the alleged acts involve the same

type of discrimination, tending to connect them in a continuing

violation? The second is frequency. Are the alleged acts recurring

(e.g., a biweekly paycheck) or more in the nature of an isolated

work assignment or employment decision? The third factor, perhaps

of most importance, is degree of permanence. Does the act have the

degree of permanence which should trigger an employee's awareness

of and duty to assert his or her rights, or which should indicate to

the employee that the continued existence of the adverse consequences

of the act is to be expected without being dependent on a continuing

intent to discriminate? [Footnote omitted.]

In addition, EEO time limitations "are subject to waiver, estoppel,[<7>]

and equitable tolling." 29 C.F.R. �1614.604(c). The Commission has held,

however, that EEO Counselor contact for purposes of tolling the time

limit requires at a minimum that the complainant intend by initiating

such contact to pursue EEO counseling. Snyder v. Department of Defense,

EEOC Request No. 05901061 (November 1, 1990).

"Equitable tolling," which appellant has invoked on appeal, is the

doctrine under which courts have tolled certain requirements where, for

example, there was affirmative misconduct on the part of a defendant,

which lulled the plaintiff into inaction. However, one "who fails to act

diligently cannot invoke equitable principles to excuse his or her lack

of diligence." Hocker v. Department of Transportation, EEOC Petition

No. 03930112 (March 4, 1994).

It is within the foregoing legal framework, that we make the following

findings in the present case: on January 6, 1994, appellant signed

an "AUTOMATED STOPPER AND REFERRAL SYSTEM (ASARS) REGISTRATION"

form for the following positions: Sheet Metal Mechanic, Component

Composites/Rotorblade, and Electroplater. On February 7, 1994,

appellant signed a "Relocation Agreement" (RA) wherein he accepted the

position of Sheetmetal Mechanic, WG-3806-10, subject to step adjustment,

at NAVAVNDEPOT MCAS (Marine Corps Air Station) in Cherry Point, North

Carolina, "as a result of transfer of work from NAVAVNDEPOT, Pensacola

[Florida]." The RA provided, in relevant part, that if appellant

accepted the RA's offer, he would not be eligible for "registration in

the Department of Defense [DOD] Priority Placement Program (Stopper List)

at NAVAVNDEPOT Pensacola."

By letter dated July 26, 1994, appellant submitted a request to the

agency to return to NADEP Pensacola. In this letter, in pertinent

part, appellant conceded he was informed, "[i]n February 1994....that

by accepting the transfer to Cherry Point, personnel would be taken

off the [PPP] because they would be considered as having employment."

Appellant further stated that he "reported to NADEP Cherry Point on 16 May

1994." However, appellant alleged that he had received "misinformation"

regarding his wife's also obtaining a position at NADEP Cherry Point.

Appellant asserted he was advised his wife could not register in a certain

program for spouses "because [appellant] was not chosen from the [PPP]."

Appellant concluded by stating the following, in relevant part:

I request to return to NADEP Pensacola immediately without any loss of

time as a [sic] Aircraft Sheetmetal Mechanic, WG-3806-10/5 and to a set

of duties as a Hazardous Waste Coordinator for 93000 Division no later

than 14 August 1994. I will register in the [PPP] and will remain in the

program until a job offer is made, or NADEP Pensacola is closed. I should

state that if this request is denied I will have no other chose [sic]

but to resign from the federal government and seek legal assistance.

Appellant's request was denied in a letter dated September 6, 1994, by a

DOD representative (DODR) who provided the Human Resources Offices (HROs)

at Cherry Point and Pensacola with copies of the denial. DODR informed

appellant, in relevant part, that "we are without authority to direct

such an action since your move to NADEP Cherry Point...was not effected

through the PPP." DODR further advised appellant as follows:

Any employee to whom you alluded whose reemployment at NADEP Pensacola

was directed by this office was outplaced via the PPP and the return

resulted from erroneous qualifications determination, misapplication of

PPP procedures or inability of the person to perform. Your assignment

to NADEP Cherry Point has none of these conditions.

We find that appellant filed an EEO complaint on October 21,

1994, in connection inter alia with the purportedly insufficient

information concerning transferring provided to him and his wife by

NADEP Cherry Point. See Ward II supra. We also find that appellant's

named representative (whom we have identified earlier as "NR") filed

a formal EEO complaint, received by the agency on September 8, 1994,

under agency case number DON 94-65889-45. On October 3, 1994, the

agency consolidated NR's complaint with the EEO complaints of five other

employees (DON 94-65889-046 through 050). The agency framed NR's issues

as follows, in relevant part:

[NR alleged discrimination based on race (Black American) when she was]

discriminated against on 8 June 1994 by...NADEP Pensacola and...(HRO)

management members when they deliberately denied [NR] the opportunity

to acquire training and experience as a Hazardous Materials Coordinator

through an established pattern and practice of discrimination since 1991,

which obstructed [NR's] opportunity to qualify for [EPS], GS-0028-09,

Announcement No. [hereinafter, VAN] CPE-035-94, and Environmental

Protection Assistant, GS-0029-07, [VAN] CPE-0146-94 temporary merit

promotions.

We find that appellant was not one of the five other complainants who were

joined to NR's EEO action. We find that NR was also the representative

for at least one of the other complainants. We further find, with regard

to the NADEP Pensacola VANS, that appellant was rated "Ineligible[/]Out

of Area of Consideration," on a "Merit Promotion Notice of Rating," on

May 23, 1994, for the following position, for which we infer appellant

applied or was considered: EPS, GS-00028-09, under VAN CPE-0035(94),

which had an opening date of February 9, 1994, and a closing date of

February 16, 1994. We find in this regard that appellant was given an

extended detail, not to exceed (NTE) May 18, 1994, at NADEP Pensacola

in the Manufacturing and Components Department, Shop 93001.<8>

We also find appellant was rated "Highly Qualified" for the position of

EPS, GS-00028-07, VAN CPE-0332(95) (Opening and closing dates: July 18,

1995-August 2, 1995) (Date of Merit Promotion Notice of Rating: August 25,

1995), as amended, on August 31, 1995, with a rating of "Noncompetitive

Eligible[/]Reinstatement." We find appellant received the same rating,

dated August 31, 1995, under the same VAN, for the position of EPS,

GS-00028-09, as amended. In addition, we find appellant was rated

"Qualified," on June 12, 1996, under VAN CPE-0241(96) for the position

of EPS, GS-00028-09. In addition, we find that, on August 13, 1996,

appellant was rated as "Highly Qualified" for the position of EPS,

GS-00028-07, under VAN CPE-0465(96), with a "period of consideration"

(POC) of "12 months from issue date." We find that the other positions

referenced above contained neither a specified POC nor a "valid until"

date.

In light of our extensive discussion above, necessitated, as we

indicated earlier, by a record that was not entirely clear, we find that

a reasonable person in appellant's circumstances would have suspected

discrimination months, if not years, before appellant's EEO Counselor

contact of October 25, 1996. We find, for example, as appellant himself

has conceded, that he has believed himself to have been discriminated

against by the agency since 1992, filing an EEO complaint as far back as

September 1992. We also find appellant declared, in his present January

13, 1997 complaint, that he had filed a prior EEO complaint, under agency

case number 93-65899-040, in connection with his present allegation

(3).<9> We further find that appellant was aware he would not be placed

on the PPP at least as early as February 7, 1994, when he signed the RA.

We also find that appellant's July 26, 1994 request to return to NADEP

Pensacola and enter the PPP was denied on September 6, 1994.

Although we find the record unclear as to when appellant actually

received certain significant documents, such as the denial of

his transfer request and notices of ratings, referenced above,

a situation which would ordinarily cause us to remand this matter,

see Henry v. United States Postal Service, EEOC Request No. 05940897

(May 18, 1995), our review of the record as a whole leads us to find

that appellant did not act with due diligence in timely pursuing his

claims. While we note, in this regard, appellant's apparent argument on

appeal that he brought the issue of his nonselection to the position of

EPS, GS-0029-09, under VAN CPE-035-94, to the attention of NC, we find no

evidence as to whether appellant in fact did so and in a timely manner.

Appellant appears to link this allegation with those raised by NR.

However, we find appellant was counseled by NC in February 1995, prior

to the filing of his (appellant's) April 7, 1995 formal EEO complaint,

which was the subject of Ward I supra. We also find appellant was aware

of his nonselection for the position of Environmental Specialist when

he attempted to raise that issue in his April 7, 1995 complaint. Id.

We find, too, appellant's admission, in his January 13, 1997 complaint,

that HROSS informed him, on February 2, 1994, that appellant could not

register for the EPS position.

Accordingly, we find that the agency, in FAD-3, properly dismissed

appellant's allegations (1)-(3). In light of this finding, we need not

address the agency's determination that allegations (2) and (3) also

failed to state a claim. Finally, we find that FAD-3 properly dismissed

allegation (4) and referred appellant for EEO counseling. We find

appellant's allegation of constructive discharge "is not like or related

to a matter that has been brought to the attention of a Counselor."

See 29 C.F.R. �1614.107(b), in relevant part; Scher v. United States

Postal Service, EEOC Request No. 05940702 (May 30, 1995).<10>

CONCLUSION

Having reviewed the entire record, the arguments on appeal, including

those not address expressly herein, and for the foregoing reasons, the

Commission hereby AFFIRMS FAD-3's dismissal of appellant's January 13,

1997 EEO complaint.

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. 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 (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:

January 8, 1999

DATE Ronnie Blumenthal, Director

Office of Federal Operations

1We have identified the FAD in the present case as FAD-3, for the

purpose of clarity and to distinguish it from other FADs contained in,

or referenced in connection with, the present case.

2We note for the record that appellant requested compensatory damages

as part of the relief sought in the present matter.

3"NADEP" and "NAVAVNDEPOT" are used herein interchangeably.

4Regarding the issue of constructive discharge, we note the Commission

previously determined, for reasons we stated in a prior decision, that

appellant's date of initial EEO Counselor contact was March 9, 1995,

in connection with his allegation that his February 7, 1995 resignation

amounted to a constructive discharge. See Ward v. Department of the Navy,

EEOC Appeal No. 01951562 (June 4, 1996), request to reconsider denied,

Ward v. Department of the Navy, EEOC Request No. 05960756 (October 31,

1996) (hereinafter, "Ward II"). In his present appeal, appellant appears

to assert that he raised the issue of constructive discharge in a prior

complaint under agency case number DON 97-65923-012, which the agency

purportedly accepted on December 17, 1996. We note, for the record, that

our decision in Ward II referenced agency case number DON 95-65923-004.

5This reference is, apparently, to the Manufacturing and Components

Department.

6It appears that, in September 1995, NADEP Pensacola was operationally

closed.

7The Commission has defined "equitable estoppel" as "the principle by

which a party is precluded by his own acts, words, or silence from

asserting a right to which he otherwise would be entitled against

another who rightfully relied on the party's acts, words, or silence to

his detriment." Jackson v. United States Postal Service, EEOC Appeal

No. 01931557 (February 17, 1994) (citation omitted).

8We note that the NADEP Pensacola Commanding Officer (CO) had requested,

on August 4, 1994, that registers be established announcing training

programs for EPS, GS-028-09, and EP Assistant, GS-029-07. These position

classification numbers seem to have varied in minor detail throughout

the record. However, we have inferred that, for example, an "028"

designation is identical to those of "0028" and "00028." While the record

is not clear with regard to the establishment of the aforesaid registers,

we also note that appellant was at NADEP Cherry Point by this time.

9In light of our determination in the present case, we need not

decide whether allegation (3) should also be dismissed pursuant to 29

C.F.R. �1614.107(a), for having previously been raised by appellant in

a prior EEO complaint.

10We would expect, if appellant has not already pursued allegation (4)

further, that the EEO Counselor would advise appellant of the right of

election under 29 C.F.R. �1614.302(b). We would also anticipate that

the Counselor would ascertain whether appellant had previously raised

the issue of constructive discharge. See note 3 ante.