Steve B. Matheny, Appellant,v.Janet Reno, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity CommissionNov 8, 1999
05980092 (E.E.O.C. Nov. 8, 1999)

05980092

11-08-1999

Steve B. Matheny, Appellant, v. Janet Reno, Attorney General, Department of Justice, Agency.


Steve B. Matheny, )

Appellant, )

) Request No. 05980092

v. ) Appeal No. 01966578

)

Janet Reno, )

Attorney General, )

Department of Justice, )

Agency. )

)

DENIAL OF REQUEST FOR RECONSIDERATION

INTRODUCTION

On October 30, 1997, Steve B. Matheny (the appellant) timely initiated a

request to the Equal Employment Opportunity Commission (the Commission)

to reconsider the decision in Steve B. Matheny v. Janet Reno, Attorney

General, Department of Justice, EEOC Appeal No. 01966578 (September

24, 1997). EEOC regulations provide that the Commissioners may,

in their discretion, reconsider any previous Commission decision. 29

C.F.R. �1614.407(a). The party requesting reconsideration must submit

written argument or evidence which tends to establish one or more of

the following three criteria: new and material evidence is available

that was not readily available when the previous decision was issued,

29 C.F.R. �1614.407(c)(1); the previous decision involved an erroneous

interpretation of law, regulation, or material fact, or a misapplication

of established policy, 29 C.F.R. �1614.407(c)(2); or the decision is of

such exceptional nature as to have substantial precedential implications,

29 C.F.R. �1614.407(c)(3). For the reasons set forth below, appellant's

request is DENIED.

ISSUE PRESENTED

Whether the previous decision properly affirmed the agency's dismissal

of a portion of appellant's complaint.

BACKGROUND

Appellant, a licensed attorney, served as a paralegal specialist, GS-9,

in the United States District Attorneys' Office (USAO), Eastern District

of North Carolina. In May 1993, he was granted a concurrent temporary

appointment as a Special Assistant United States Attorney (SAUSA), and

in June 1993, he was promoted to Paralegal, GS-11. A-1 was hired by the

USAO as a permanent U.S. Assistant Attorney (AUSA) on December 11, 1994,

and A-2 was hired as a permanent AUSA on January 22, 1995. Both new

hires were Black females. Appellant's appointment as SAUSA was never

converted to AUSA, and he was returned to his position as Paralegal on

June 2, 1995. Appellant contacted an EEO Counselor on July 13, 1995.

Appellant asserts in a February 10, 1996 letter to the agency that he

did not know that the hirings were discriminatory at the time because:

(1) he was still being led to believe that his own conversion from

SAUSA to AUSA would soon take place; (2) he was told by the personnel

manager that he did not need to do anything to formally apply for the

job because the U.S. Attorney knew that he desired the position; and (3)

he did not know the experience levels and backgrounds of the new hires,

until he made FOIA requests concerning their credentials. It is not

clear from the record when these requests were made.

Appellant filed an EEO complaint on September 9, 1995 alleging

discrimination on the basis of race (White), sex (male), and reprisal:

a. when, on June 2, 1995, management terminated his SAUSA position,

and refused to convert him to the position of AUSA;

b. when management compensated him for work performed as a SAUSA at

the GS 11/1 and GS-11/2 grade levels while compensating a female SAUSA

performing the same work at the GS-11/8 and GS-11/9 grade levels and

later converting her to AUSA position;

c. when management compensated him for work performed as a SAUSA at

a lower grade and salary than that of female Paralegals in the United

States Attorneys' Office (USAO) performing equal work;

d. when management discounted his efforts to change his job description

and grade level from GS-11 to either GS-12 or GS-13 because he contacted

the Executive Office for the United States Attorneys' Office (EOUSA)

Equal Employment Opportunity (EEO) Staff concerning his discrimination

Equal Pay Act claims;

e. when management terminated his SAUSA position, because he brought

his Equal Pay Act claims to the attention of the EOUSA Evaluation and

Review Staff (EARS);

f. when management of the USAO paid appellant, a male, a lower salary

than they paid two female, Assistant United States Attorneys, A-1 and A-2,

for the performance of equal work; and

g. when the USAO hired two African American females as AUSAs and refused

to hire appellant for either of these positions.

The final agency decision (FAD), dated August 2, 1996, dismissed

allegation g for untimely EEO Counselor contact because the hiring of the

two employees occurred in December 1994 and January 1995, respectively.

Appellant did not, however, contact an EEO Counselor until July 13, 1995,

more than 5 months after the hiring took place. The previous decision,

dated September 24, 1997, affirmed the agency's decision to dismiss

allegation g of appellant's complaint.

In his Request to Reconsider (RTR), postmarked October 30, 1997,

appellant asserted, among other arguments, that he could not have known

that discrimination was taking place until his SAUSA was terminated and he

was demoted to Paralegal because until that time he had believed that his

conversion from SAUSA to AUSA was forthcoming. The agency responded to

appellant's appeal by stating that the evidence which appellant presented

in his RTR was not material to his allegation regarding the hiring of

the two Black females AUSAs in December 1994 and January 1995.

ANALYSIS AND FINDINGS

The Commission finds that the appellant's RTR does not meet the criteria

of 29 C.F.R. �1614.407(c)(2). It is, therefore, the decision of the

Commission to deny appellant's request.

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

person must initiate contact with an EEO Counselor within 45 days of

the date of the matter alleged to be discriminatory or within 45 days of

the effective date of the personnel action. The Commission has adopted

a "reasonable suspicion" standard (as opposed to a "supportive facts"

standard) for determining whether contact with an EEO Counselor is timely.

Ball v. U.S. Postal Service, EEOC Request No. 05880247 (July 6, 1988).

Under this standard, the regulatory limitations period "is not triggered

until complainant reasonably suspects discrimination, but before all

the facts that would support a charge of discrimination have become

apparent." Bracken v. U.S. Postal Service, EEOC Request No. 05900065

(March 29, 1990).

We find that appellant should reasonably have suspected discrimination

when A-1 and A-2 were hired in 1994 and 1995, respectively. The hirings

of A-1 and A-2 were more than 45 days prior to appellant's initial EEO

Counselor contact on July 13, 1995. Appellant's EEO Counselor contact

was, therefore, untimely.

CONCLUSION

After a review of appellant's request for reconsideration, the previous

decision, and the entire record, the Commission finds that appellant's

request fails to meet the criteria of 29 C.F.R. �1614.407(c)(2), and it

is the decision of the Commission to DENY the request. The decision

in EEOC Appeal No. 01966578 remains the Commission's final decision.

Allegation g may be considered as background evidence. There is no

further right of administrative appeal from the decision of the Commission

on request for reconsideration.

RIGHT TO FILE A CIVIL ACTION (P0993)

This decision of the Commission is final, and there is no further right of

administrative appeal from the Commission's decision. You have the right

to file a civil action in an appropriate United States District Court.

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.

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:

__11-08-99___ __________________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations