01992932
07-26-2000
Marshall Fritz, Complainant, v. Janice R. Lachance, Director, Office of Personnel Management, Agency.
Marshall Fritz v. OPM
01992932
July 26, 2000
.
Marshall Fritz,
Complainant,
v.
Janice R. Lachance,
Director,
Office of Personnel Management,
Agency.
Appeal No. 01992932
Agency No. 98-23
DECISION
INTRODUCTION
On March 4, 1998, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) pertaining to his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> In his complaint,
complainant alleged that he was subjected to discrimination on the bases
of race (Caucasian), national origin (European) and reprisal (prior EEO
activity) when his employing agency, the Department of Health and Human
Services, and a Federal administrative agency, the Office of Personnel
Management (OPM), failed to provide job placement assistance to non-Indian
employees seeking other Federal positions.<2>
ISSUE PRESENTED
The issue on appeal is whether OPM properly dismissed complainant's
complaint for failure to state a claim and untimely EEO contact.
BACKGROUND
During the period in question, complainant was a Statistician at a
Maryland facility of his employing agency. Believing he was a victim
of discrimination, complainant initiated EEO counseling on May 26,
1998, and thereafter filed a formal complaint on September 30, 1998,
alleging discrimination based on race (white), national origin (European)
and reprisal (prior EEO activity)<3>. In his complaint, complainant
specifically alleged that his employing agency as well as OPM consistently
failed to provide assistance to non-Indian employees seeking placement
in other Federal agencies. Complainant alleged that such discrimination
occurred since the inception of The Indian Civil Service Retirement
Act, 5 U.S.C. � 8336(j) (1988), which requires Federal job placement
assistance for non-Indians in complainant's agency.<4> Prior to this
complaint, complainant corresponded with a Federal official and members
of Congress as well as filed a grievance and complaints also addressing
both agencies' discrimination against non-Indians, particularly their
failure to give job placement assistance.
On January 22, 1999, OPM issued a final decision dismissing complainant's
complaint for failure to state a claim and untimely EEO contact.
This appeal followed.
ANALYSIS AND FINDINGS
Untimely EEO Contact<5>
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 Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). 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 he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
In this case, complainant indicated that his EEO contact was timely
because OPM's failure to provide assistance was a continuing violation and
each day it failed to do so was a triggering event. The Commission finds,
for purposes of reasonable suspicion as well as continuing violation, the
45-day time limit was triggered when complainant requested job placement
assistance from either agency and was denied it. Complainant indicated
he first requested placement assistance in a grievance filed in March
1990 in which he requested placement in another agency as a remedy.<6>
He again requested assistance in 1990 when he submitted an application
for a job register maintained by OPM. Complainant does not refer to
any other specific dates on which he requested assistance although
he was informed about P.L. 96-135, the law requiring the agencies to
give placement assistance to non-Indian employees, in December 1994.
Accordingly, OPM's decision to dismiss is affirmed.
CONCLUSION
It is the decision of the Commission to AFFIRM OPM's dismissal of
complainant's complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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, Acting Director
Office of Federal Operations
July 26, 2000
__________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2In December 1996, complainant filed a formal complaint in which he
also alleged lack of job placement assistance from his employing agency
and OPM. Complainant's employing agency issued a FAD on June 11, 1997
accepting the claim for investigation. Accordingly, this decision only
addresses complainant's same claim against OPM.
3Complainant claimed reprisal in that no action was taken to eliminate
the alleged discrimination.
4Complainant's employment with the agency began in 1987.
5In this decision, the Commission affirms the dismissal of complainant's
complaint for untimely EEO contact, therefore, failure to state a claim
will not be addressed herein.
6Complainant indicated his employing agency told him placement was not
available at all.