Frank Sobchak, Appellant,v.Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionSep 7, 1999
01985077_r (E.E.O.C. Sep. 7, 1999)

01985077_r

09-07-1999

Frank Sobchak, Appellant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.


Frank Sobchak, )

Appellant, )

)

v. ) Appeal No. 01985077

) Agency No. 98-0411-SSA

Kenneth S. Apfel, )

Commissioner, )

Social Security )

Administration, )

Agency. )

______________________________)

DECISION

On June 18, 1998, appellant filed a timely appeal with this Commission

from a final agency decision (FAD), dated May 13, 1998, pertaining to

his complaint of unlawful employment discrimination in violation of

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

29 U.S.C. �621 et seq. and Title VII of the Civil Rights Act of 1964,

as amended, 42 U.S.C. �2000e et seq. The Commission accepts appellant's

appeal in accordance with EEOC Order No. 960, as amended.

In his complaint, appellant alleged that he was subjected to

discrimination on the bases of his age (50), national origin (Polish),

race (white), sex (male) and reprisal when:

He was not selected for the GS-343-13 Program Analyst position [vacancy

announcement number (VAN) H-1726], effective December 8, 1996.

He was not selected for the GS-105-13 Social Insurance Specialist (SIS)

position (VAN H-1727), effective June 22, 1997 and posted on SSA bulletin

boards in July 1997.

He was not selected for the GS-105-13 SIS position (VAN U-178), effective

March 2, 1997. On or about August 28, 1997, the complainant became

aware that he did not make the best qualified list (BQL).

He was not selected for the GS-105-13 SIS position (VAN U-180),

effective March 2, 1997.

He was not selected for the GS-105-13 SIS position (VAN U-181),

effective March 2, 1997.

He was not selected for the GS-105-13 SIS position (VAN U-182),

effective March 2, 1997.

He was not selected for the GS-105-13 SIS position (VAN U-183),

effective March 2, 1997.

He was not selected for the GS-105-13 SIS position (VAN P-1060),

effective March 16, 1997.

He was not selected for the GS-101-13 Social Science Research Analyst

position, (VAN H-1749), effective June 8, 1997.

He was not selected for the GS-105-13 SIS position (VAN H-1750),

effective June 8, 1997.

Also, appellant alleged other allegations in his formal complaint and

during EEO counseling, which the agency only described as "remaining

allegations" in its FAD. These allegations, essentially, encompass

appellant's assertion that the affirmative action policy of the

agency violates his "Fifth Amendment right to equal protection" and

is "unconstitutional" because it denies him (as a white male) career

advancement.

The agency dismissed allegations 1 through 10 pursuant to 29

C.F.R. �1614.107(b), and appellant's remaining allegations pursuant to 29

C.F.R. �1614.107(a). Specifically, the agency noted that, with respect

to all 10 of the allegations listed above, appellant initiated contact

with an EEO Counselor on September 26, 1997. The agency asserted that

appellant was constructively notified of his nonselection for each of the

VANs in question because the most recent VANs in question were posted on

bulletin boards throughout the SSA Headquarters on July 2, 1997, more

than 60 days before appellant sought EEO counseling. The agency noted

that appellant's allegations do not meet the standard of a continuing

violation because the VANs in question are unconnected events and there

was no one selecting official or one distinct organizational entity

responsible for each selection. Regarding the remaining allegations,

the agency found that appellant had raised the same allegations in prior

complaints 97-0098-SSA, 97-0206-SSA and 98-0376-SSA, which were pending

before the Commission.

The record indicates that the allegations in prior complaints 97-0098-SSA,

97-0206-SSA and 98-0376-SSA, address appellant's assertions that the

affirmative action policy of the agency violates his right to equal

protection under the law, thereby denying him career advancement as a

white male.

On appeal, appellant contends that he could not be expected to have

knowledge of any of the subject VAN effective dates since he is not

notified directly by the Office of Personnel (OP) pertaining to that

action. Appellant indicates that the vacancies were all in other office

components, therefore he would not know, and reasonably should not have

known, that these matters or personnel actions occurred. According to

appellant, he had been on leave for about a ten-day period, and upon

returning, began contacting OP specialists about various VANs, including

the 10 cited in this complaint, because he had not received notice of

any selections. Appellant asserts that he began receiving information

pertaining to the 10 VANs in question during the period of August 12th

through August 27, 1997. Concerning the remaining allegations, appellant

urges that these allegations should be examined by the agency under a

continuing violation theory.

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.

Upon review, we find that based upon the present record, it is unclear

when appellant learned of the nonselections at issue. While the agency

contends that the selections were posted on bulletin boards by July 2,

1997, appellant contends that he did not learn of his nonselection

until he received information from OP in August 1997. Consequently,

we find that the dismissal of allegations 1-10 for untimely EEO contact

must be vacated. These allegations are remanded to the agency for a

supplemental investigation in accordance with the Order below.

EEOC Regulation 29 C.F.R. �1614.107(a) provides that the agency shall

dismiss a complaint or a portion of a complaint that states the same claim

that is pending before or has been decided by the agency or Commission.

As to the remaining allegations, appellant stated the same allegations

in prior complaints 97-0098-SSA, 97-0206-SSA and 98- 0376-SSA, which

have been decided by the Commission. EEOC Appeal No. 01975467 (May 22,

1998) and EEOC Appeal No. 01984517 (June 3, 1999). Therefore, the agency

properly dismissed these allegations.

CONCLUSION

The agency's final decision regarding the remaining allegations is

AFFIRMED, while the agency's dismissal of the allegations 1-10 is hereby

VACATED. Allegations 1-10 are hereby REMANDED to the agency to conduct

a supplemental investigation in accordance with the Order below.

ORDER

The agency is ORDERED to take the following actions:

Within (15) calendar days of the date this decision becomes final,

the agency shall request information from appellant regarding the

names and dates of the individuals in OP who he contacted regarding

the nonselections at issue and copies of any information he received in

response to his contacts. Appellant shall be advised that he has fifteen

(15) calendar days from the date of his receipt of the agency's request

within which to respond.

The agency shall supplement the record with evidence consisting of

statements/affidavits regarding when appellant should have known of

his nonselections. In particular, the agency shall obtain statement

from the personnel who were responsible for the various postings of the

selections for the identified VANs, including the dates of such postings,

and copies of any postings. The agency shall gather any other relevant

evidence necessary to determine when appellant should have known of his

nonselections for the VANs at issue.

The agency shall issue a new FAD and/or notice of processing within

forty-five (45) calendar days. A copy of the new FAD and/or notice of

processing must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action.

The report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503(a). The appellant also has the right

to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. ��1614.408, 1614.409, and 1614.503(g). Alternatively,

the appellant has the right to file a civil action on the underlying

complaint in accordance with the paragraph below entitled "Right to File

A Civil Action." 29 C.F.R. ��1614.408 and 1614.409. A civil action for

enforcement or a civil action on the underlying complaint is subject to

the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the

appellant files a civil action, the administrative processing of the

complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. �1614.410.

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 (T0993)

This decision affirms the agency's final decision in part, but it also

requires the agency to continue its administrative processing of a

portion of your complaint. You have the right to file a civil action

in an appropriate United States District Court on both that portion of

your complaint which the Commission has affirmed AND that portion of the

complaint which has been remanded for continued administrative processing.

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. 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:

Sept. 7, 1999

____________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations