Stephen J. Katsanos, Appellant,v.Donna A. Tanoue, Chairman, Federal Deposit Insurance Corporation, Agency.

Equal Employment Opportunity CommissionOct 12, 1999
01986562 (E.E.O.C. Oct. 12, 1999)

01986562

10-12-1999

Stephen J. Katsanos, Appellant, v. Donna A. Tanoue, Chairman, Federal Deposit Insurance Corporation, Agency.


Stephen J. Katsanos v. Federal Deposit Insurance Corporation

01986562

October 12, 1999

Stephen J. Katsanos, )

Appellant, )

)

)

v. ) Appeal No. 01986562

) Agency No. FDIC 98-74

)

Donna A. Tanoue, )

Chairman, )

Federal Deposit Insurance )

Corporation, )

Agency. )

______________________________)

DECISION

On September 1, 1998, appellant filed a timely appeal of a July 31,

1998 final agency decision, which was received by appellant on August 5,

1998, dismissing his complaint, pursuant to 29 C.F.R. ��1614.107(a) and

(b), for stating the same claim that was pending before or decided by

the agency and due to untimely EEO Counselor contact.

In its final decision, the agency identified the allegations

of appellant's June 1, 1998 complaint as whether appellant was

discriminated against based on race (Caucasian), sex (male), and age

(DOB: 8/19/53) when: (1) in December 1995, his supervisor gave his RTC

media responsibilities to a younger white male; (2) in February 1996,

FDIC's Director denied his FDIC media responsibilities; (3) in March 1996,

the Director assigned appellant's duties as FDIC's Deputy Director, OCC to

a Hispanic female and assigned appellant custodian responsibilities for

the Public Reading Room; (4) on October 31, 1997, the Director issued

him a performance evaluation covering the period November 1, 1996,

through October 31, 1997, containing an overall rating of marginal; and

(5) on March 20, 1998, he received a third step grievance response which

agreed with his February 9, 1998 first step grievance response to deny

his request that the overall rating he received on October 31, 1997,

be changed from marginal to superior.

The agency stated that appellant's March 26, 1998 EEO Counselor contact

with regard to the incidents raised in allegations (1) through (4) was

untimely. The agency indicated that these incidents failed to constitute

a continuing violation since they were sufficiently distinct to trigger

the running of the limitations period. The agency noted that on October

31, 1997, appellant received the performance appraisal at issue, but he

filed a grievance on December 16, 1997, instead of contacting an EEO

Counselor. The agency further noted that only when appellant failed

to receive the desired results at the third stage of the grievance

process on March 20, 1998, did he decide to seek EEO counseling.

In addition, the agency pointed out that the EEO Counselor's Report

indicated that appellant acknowledged that he was aware that he might

have been discriminated against with respect to allegations (1) through

(4), but he chose not to initiate EEO counseling because of his position

as a Deputy Director. With regard to allegation (5), the agency stated

that it concerned the same matter raised in allegation (4) and, therefore,

the agency dismissed allegation (5), pursuant to 29 C.F.R. �1614.107(a),

for stating the same claim pending before or decided by the agency.

It is noted that although the agency dismissed allegation (5) for stating

the same claim that was pending before or decided by the agency, we,

upon review, find that it is more properly dismissed for failure to

state a claim.

EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may dismiss

a complaint which fails to state a claim pursuant to 29 C.F.R. �1614.103.

In order to establish standing initially under 29 C.F.R. �1614.103, a

complainant must be either an employee or an applicant for employment of

the agency against which the allegations of discrimination are raised.

In addition, the allegations must concern an employment policy or

practice which affects the individual in his/her capacity as an employee

or applicant for employment. The agency shall accept a complaint from any

aggrieved employee or applicant for employment who believes that he/she

has been discriminated against by that agency because of race, color,

religion, sex, national origin, age, or disability. 29 C.F.R. ��1614.103

and .106(a). The Commission's Federal sector case precedent has long

defined an "aggrieved employee" as one who suffers a present harm or loss

with respect to a term, condition, or privilege of employment for which

there is a remedy. Diaz v. Department of the Air Force, EEOC Request

No. 05931049 (April 21, 1994).

Upon review, we find that allegation (5) fails to state a claim since it

constitutes a collateral attack on the grievance process. The Commission

has held that an employee cannot use the EEO complaint process to lodge a

collateral attack on another proceeding. See Kleinman v. United States

Postal Service, EEOC Request No. 05940585 (September 22, 1994); Lingad

v. United States Postal Service, EEOC Request No. 05930106 (June 24,

1993). The proper forum for appellant to have raised his dissatisfaction

of his third step grievance decision is within that grievance process.

EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of

discrimination be brought to the attention of the EEO Counselor within

45 days of the alleged discriminatory event, or the effective date of

an alleged discriminatory personnel action.

The Commission has adopted a "reasonable suspicion" standard (as opposed

to a "supportive facts" standard) to determine when the limitation period

is triggered under the EEOC Regulations. See 29 C.F.R. �1614.105(a)(2);

Ball v. United States Postal Service, EEOC Request No. 05880247 (July 6,

1988). Thus, the limitations period is not triggered until a complainant

should reasonably suspect discrimination, but before all the facts that

would support a charge of discrimination have become apparent.

Upon review, we find that allegations (1) through (4) occurred on

or prior to October 31, 1997, but appellant did not contact an EEO

Counselor until March 26, 1998, which was beyond the 45-day time limit

set by the regulations. Specifically, with regard to the denial of

media responsibilities, appellant states on appeal that in December 1995,

his supervisor told him that the Chairman was "comfortable" with using a

younger (white, male) member of the OCC's staff as spokesman for FDIC.

Thus, we find that appellant knew or should have reasonably known that

he was discriminated against concerning the subject matter at the time

of the incident.

Although appellant claimed a continuing violation, we find that since

there is no incident which fell within the time period for contacting an

EEO Counselor, the complaint fails to constitute a continuing violation.

See McGivern v. United States Postal Service, EEOC Request No. 05901150

(December 28, 1990); Starr v. United States Postal Service, EEOC Appeal

No. 01890412 (April 6, 1989). Furthermore, we note that each of the

alleged discriminatory incidents, i.e., the removal and the denial of

his duties/responsibilities and a performance appraisal, were separate

and discrete incidents, which should have triggered any suspicion of

discrimination at the time they occurred. See Valentino v. United States

Postal Service, 674 F.2d 56 (D.C. Cir. 1982); Clark v. Olinkraft, Inc.,

556 F.2d 1219 (5th Cir. 1977), cert. denied, 434 U.S. 1069 (1978).

Specifically, with regard to allegation (4), concerning appellant's

performance appraisal, we find that appellant filed a grievance on

December 16, 1997, instead of contacting an EEO Counselor. The Commission

has held that the use of the negotiated grievance procedure does not

toll the time limits for contacting an EEO Counselor. See Schermerhorn

v. USPS, EEOC Request No. 05940729 (February 10, 1995).

On appeal, appellant contends that the fear of reprisal from the

agency prevented him from initiating EEO counseling in a timely manner.

The Commission has determined that fear of reprisal, without more, will

not toll the applicable EEO time limitations. Croft v. Department of the

Army, EEOC Request No. 05970699 (August 1, 1997). Based on the foregoing,

we find that appellant failed to present adequate justification to warrant

an extension of the applicable time limit for contacting an EEO Counselor

pursuant to 29 C.F.R. �1614.105(a)(2).

Accordingly, the agency's final decision is hereby 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. 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:

October 12, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations