01986548
04-19-2000
Ronnie G. Irvin, Complainant, v. Alexis M. Herman, Secretary, Department of Labor, Agency.
Ronnie G. Irvin v. Department of Labor
01986548
April 19, 2000
Ronnie G. Irvin, )
Complainant, )
)
v. ) Appeal No. 01986548
) Agency No. DCR-7-04-046
Alexis M. Herman, )
Secretary, )
Department of Labor, )
Agency. )
______________________________________)
DECISION
INTRODUCTION
Complainant timely initiated an appeal to the Equal Employment Opportunity
Commission (EEOC) from the final agency decision concerning his equal
employment opportunity (EEO) complaint, which alleged discrimination in
violation of the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. �621 et seq., and the Rehabilitation Act of 1973, as
amended, 29 U.S.C. �791 et seq. The appeal is accepted by the Commission
in accordance with the provisions of 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified at 29 C.F.R. �1614.405).<1>
ISSUES PRESENTED
The issues presented are: (1) whether the agency properly dismissed
complainant's complaint in part for failure to state a claim; and (2)
whether the agency properly dismissed the remainder of complainant's
complaint for failure to raise the claims alleged during EEO counseling.
BACKGROUND
In a complaint dated January 24, 1997, complainant, then Coal Mine
Inspector, GS-12, with the agency's Mine Safety and Health Administration
(MSHA), alleged that the agency discriminated against him on the bases
of age (58) and disability (osteoarthritis and pulmonary disease) when
MSHA conspired with the Office of Workers' compensation Programs (OWCP)
to downgrade him and transfer him to a position outside of his commuting
area, and refused to reinstate him to the OWCP compensation rolls; and
(2) when he was not selected for the position of Conference Officer,
GS-12, in MSHA's Barbourville, Kentucky, office.
The agency conducted an investigation, provided complainant with a copy of
the investigative report, and advised complainant of his right to request
either a hearing before an EEOC administrative judge (AJ) or an immediate
final agency decision (FAD). Complainant initially requested a hearing,
but subsequently withdrew that request. On August 20, 1998, the agency
issued a FAD dismissing Issue 1 for failure to state a claim, noting
that Issue 1 constituted a collateral attack on decisions of OWCP; and
dismissing Issue 2 for failure to raise the specified non-selection claim
or other subsequently raised non-selection claims during counseling.<2>
It is from this decision that complainant now appeals.
ANALYSIS AND FINDINGS
Regarding Issue 1, the reassignment and removal from the compensation
rolls, the Commission has held that a complainant states a claim where
he or she alleges that, motivated by discriminatory animus, the agency
took specific steps to interfere with a workers' compensation claim.
Bray v. U.S. Postal Service, EEOC Appeal No. 01944243 (February 6,
1995), req. to reopen den., EEOC Request No. 05950410 (February 1,
1996); Hogan v. Dept. of the Army, EEOC Request No. 05940407 (September
29, 1994); O'Neal v. U.S. Postal Service, EEOC Request No. 05900620
(August 30, 1990). These cases typically involve failure of the agency
to provide information or signatures necessary to process the workers'
compensation claim. See id.
Here, however, complainant alleged discrimination with regard to his
removal from the compensation rolls and offer of reassignment made
pursuant to a claim for job-related illness or injury. To address this
allegation, the Commission would have to review the determinations of
OWCP which led to the offer of reassignment and complainant's removal
from the compensation rolls. Review of OWCP determinations is within
the jurisdiction of the agency's Employees' Compensation Appeals Board,
not the Commission, and does not fall within the limited circumstances
under which a complainant may appeal to the Commission. See Hogan
v. Dept. of the Army, EEOC Request No. 05940407 (September 29, 1994);
Gray v. Dept. of the Army, EEOC Appeal No. 01944944 (August 8, 1995).
Accordingly, the agency properly dismissed Issue 1.
Regarding issue 2, the non-selections, the Commission's regulations
require that complaints of discrimination be brought to the attention
of an EEO counselor within 45 days of the date of the matter alleged
to be discriminatory or, in the case of a personnel action, within 45
days of the effective date of the action. 29 C.F.R. �1614.105(a)(1).
The Commission has adopted a "reasonable suspicion" standard, as
opposed to a "supportive facts" standard, to determine when the 45-day
limitation period is triggered. See Ball v. U.S. Postal Service, EEOC
Request No. 05880247 (July 6, 1988). Thus, the limitations period is
not triggered until a complainant reasonably suspects discrimination,
but before all of the facts that support a charge of discrimination have
become apparent.
In this case, the specific non-selection cited by complainant occurred
in June 1994, and complainant did not contact an EEO Counselor until
October 15, 1996. Further, while complainant did suggest placement
in this position as an element of relief during counseling, he did
not raise the 1994 non-selection as an issue during EEO counseling.
Complainant has not offered any explanation for his failure to do so.
Accordingly, the agency properly dismissed Issue 2.<3>
CONCLUSION
Based upon a thorough review of the record, and for the foregoing reasons,
it is the decision of the Equal Employment Opportunity Commission to
AFFIRM the final agency decision.
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
April 19, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
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.
2Rather than actual instances of non-selection, these allegations
apparently refer to complainant's contention, in connection with Issue 1,
that there were available positions he was capable of performing within
his commuting area.
3The Commission notes that after dismissing both issues of the complaint,
the agency appended a cursory statement finding no discrimination.
The agency's dismissal of both issues was proper, however, and left the
agency no issues to consider on the merits.