Subhash C. Madan, Appellant,v.Alexis M. Herman, Secretary, Department of Labor, Agency.

Equal Employment Opportunity CommissionNov 5, 1999
01991434 (E.E.O.C. Nov. 5, 1999)

01991434

11-05-1999

Subhash C. Madan, Appellant, v. Alexis M. Herman, Secretary, Department of Labor, Agency.


Subhash C. Madan v. Department of Labor

01991434

November 5, 1999

Subhash C. Madan, )

Appellant, )

)

v. ) Appeal No. 01991434

) Agency No. 8-11-109

Alexis M. Herman, )

Secretary, )

Department of Labor, )

Agency. )

______________________________)

DECISION

INTRODUCTION

On December 8, 1998, appellant filed a timely appeal from the agency's

November 12, 1998 final decision (FAD), which partially dismissed

appellant's May 14, 1998 formal EEO complaint for failure to state

a claim; untimely EEO Counselor contact; and mootness, pursuant to

29 C.F.R. ��1614.107(a), (b), and (e). We accept appellant's appeal

pursuant to EEOC Order No. 960, as amended. For the reasons set forth

below, we set aside the FAD.

BACKGROUND

On February 24, 1998, appellant initiated EEO Counselor contact. In his

formal complaint, appellant alleged he was discriminated on the bases

of race, color, national origin, reprisal, and age

In an attachment to his complaint, appellant alleged that the agency

engaged in a "pattern and practice" of discriminatory hiring dating to

1992 when he applied for a position with the agency. Appellant further

alleged that he had applied for and been nonselected "for numerous

positions" in grades 9 through 12, for which he had been qualified

and for which he had been interviewed. Appellant indicated that the

agency no longer interviewed him after he first sought EEO counseling.

Appellant also alleged that the agency had ignored his requests for

information about the criteria for selection. In addition, appellant

alleged that he had previously sought EEO counseling "and been refused."

Appellant further alleged that he is "challenging the agency's policies

and methods of screening and selecting its employees similarly situated

to myself as discriminatory against individuals like myself....Further

information will be supplied during the investigation stage."

Appellant also alleged a continuing violation and claimed that the agency

had failed to select him for the position of Economist. Appellant alleged

that, at the time of his EEO counseling, he was notified of his most

recent nonselection on November 18, 1997, under vacancy announcement

number (VAN) XW-70034, a position it appears appellant applied for at

a June 25, 1997 job fair.

Appellant further alleged that he was nonselected for "all positions

open during the job fair for which I applied or was referred," including

the following VANs: "BLS-010 (or 001)-94, DL-DEU-93-33, DEU-97-08 (same

as, perhaps, XW-70034), NCSC/ILAB-94-053A, DL-DEU-94-09, DL-DEU-93-23,

BLS-145-93, BLS-060-94, BLS-071-93, BLS-127-93, BLS-128-93, BLS-120-93,

BLS-121-93, [and] BLS-159-93. (Records are not available for other

applications, but will be uncovered during the investigation stage)."

As part of the relief sought, appellant requested compensatory damages.

The FAD accepted the following issue for investigation:

Whether appellant was discriminated against when he learned, on November

18, 1997, that he had not been selected for VAN DEU-97-08, Economist,

GS-0110-09.

The FAD dismissed the remainder of appellant's complaint, as

identified by the agency. The FAD dismissed, for mootness, the issue

of appellant's nonselection for the position of GS-0110-09 Economist,

under VAN DL-DEU-93-33. The FAD stated that "no selection was made from

Certificate No. XW-3-002550 due to budget constraints and the enclosed

certificate was returned on October 17, 1993."

The FAD also dismissed, for failure to state a claim, appellant's

allegation that he was nonselected under VAN BLS 010-94, advertised on

November 5, 1993, for the position of GS-0110-12 Economist. The FAD

stated that "the position was open only to those applicants with Civil

Service Status." The FAD further dismissed, for failure to state a

claim, appellant's allegation that he had been nonselected "for other

unspecified positions for which [appellant] currently [did] not have the

[VANs] or other details."

Finally, the FAD dismissed the following allegations, in relevant part,

as having occurred beyond the applicable time period of 45 days for

initiating EEO counseling, as set forth at 29 C.F.R. �1614.105(a)(1):

[VANs] NCSC/ILAB-94-053A, DL-DEU-94-09, DL-DEU-93-23, BLS-145-93,

BLS-060-94, BLS-071-93...BLS-127-93, BLS-128-93, BLS-120-93, BLS-121-93,

BLS-159-93...BLS-010-94, [and] DL-DEU-93-33.

The FAD rejected appellant's assertion of a continuing violation, by

stating the following:

[Appellant] provided an explanation for the delay in bringing the issue of

[his] non-selection for DEU-97-08, but [appellant] did not explain [his]

delay in bringing the other matters to the attention of an EEO counselor,

either in [his] statement transmitting [his] formal complaint or in

the information [he] provided to the EEO counselor. [Appellant] should

explain [his] reason(s) for [his] delay in filing to [his] investigator.

CONTENTIONS ON APPEAL

On appeal, appellant contends that he is appealing "issues for

investigation." Although we find appellant's subsequent brief

untimely,<1> the record contains a post-FAD letter, dated November 23,

1998, from appellant to the agency. In this letter, appellant

raises certain objections to the FAD, including the agency's definition of

the issues in his complaint. He argues, for example, that the agency's

decision did not address two unspecified positions, for which he was

interviewed on October 13, 1993, and for which he was nonselected.

Appellant argues that, although he was not aware of the applicable time

limitation of 45 days when he requested EEO counseling concerning his

nonselections in November 1993, the agency denied his request. Appellant

also argues that the agency denied his request for EEO counseling in

December 1997.

The agency raised no new contentions in its response to appellant's

appeal.

ANALYSIS AND FINDINGS

As a threshold matter, the Commission finds the agency has not properly

defined the issues in appellant's complaint. Smith v. U.S. Postal

Service, EEOC Request No. 05921017 (April 15, 1993); EEO Management

Directive 110 (EEO MD-110) for 29 Part 1614 (Chap. 2, III (Oct. 22,

1992)). In the present case, we find the agency improperly fragmented

appellant's complaint by disregarding the "pattern and practice" aspect

of his allegations pertaining to the agency's purported failure to hire

him, for prohibited reasons, dating back to at least 1993. The EEO

Counselor's Report recognized this pattern aspect when it framed

appellant's issues/allegations accepted for counseling as follows,

in relevant part:

Whether, by failing to select him for various jobs, the Bureau of Labor

Statistics [BLS] unlawfully discriminated against appellant....

The Commission has, in the past, cautioned agencies against treating

complaints in "piecemeal" fashion. Meaney v. Department of the Treasury,

EEOC Request No. 05940169 (November 3, 1994).

We also find that the agency has failed to address appellant's claims

that it agency improperly denied him EEO counseling in 1993 and again

in 1997, thereby improperly dismissing those allegations de facto.

Smith v. U.S. Postal Service, supra; EEO MD-110, supra, Ch. 4, �III(D)

at 8.

We further find the agency erred in dismissing appellant's allegations

pertaining to two nonselections, on mootness and failure to state a

claim grounds. We find the agency's stated reasons for dismissal, i.e.,

budgetary constraints and the requirement for Civil Service status,

respectively, improperly go to the merits of appellant's allegations.

Finally, we find that the agency has not adequately addressed the issue

of the timeliness of appellant's EEO Counselor contact.<2> We find

the FAD improperly placed the burden on appellant for explaining his

purportedly untimely EEO contact, without either adequately addressing

the reasons for his purported untimeliness or obtaining sufficient

information in the record to support its determination regarding the

question of timeliness. McDonald v. Department of Transportation, EEOC

Request No. 05960642 (August 11, 1998).

The Commission has held that, where, as here, there is an issue of

timeliness, "[a]n agency always bears the burden of obtaining sufficient

information to support a reasoned determination as to timeliness." Guy,

Jr. v. Department of Energy, EEOC Request No. 05930703 (January 4, 1994)

(quoting Williams v. Department of Defense, EEOC Request No. 05920506

(August 25, 1992)). Moreover, where, as here, a complainant alleges

a pattern and practice of discrimination against him, an agency is

obligated to initiate an inquiry into whether any allegations untimely

raised fall within the ambit of the continuing violation theory. Id.

The Commission has determined that the normal time limit for contacting

an EEO Counselor may be suspended if a continuing violation is

demonstrated.<3> Vissing v. Nuclear Regulatory Commission, EEOC

Request No. 05890308 (June 13, 1989). A continuing violation has been

defined as a series of related acts, one or more of which falls within

the limitations period. Valentino v. U.S. Postal Service, 674 F.2d 56

(D.C. Cir. 1982); Clark v. Olincraft, Inc., 556 F.2d 1219 (5th Cir. 1977),

cert. denied, 434 U.S. 1069 (1978). To establish a continuing violation,

one must show a "long-lasting pattern of like events" similar to a policy

of discrimination (albeit directed against a single individual). Shehedah

v. Chesapeake and Potomac Telephone Co. of Maryland, 595 F.2d 711, 725

(D.C. Cir. 1978) (defendant repeatedly provided negative references on

former employee).

In the present case, we find the FAD, although discussing the continuing

violation doctrine, fails to conduct any applicable analysis. Accordingly,

we find the agency committed error and set aside its final decision.

CONCLUSION

The Commission hereby VACATES the FAD and REMANDS appellant's complaint

for further processing in accordance with the Commission's decision and

applicable regulations. The parties are advised that this decision is

not a decision on the merits of appellant's complaint. The agency is

hereby directed to comply with the Commission's ORDER set forth below.

ORDER

The agency is ORDERED to process appellant's complaint in accordance with

29 C.F.R. Part 1614 and instructions in this decision. Specifically,

the agency shall take the following actions:

1. Schedule in writing a meeting between appellant, including appellant's

representative if any; and an EEO Counselor; so an agreement can be

reached on the issues in appellant's May 14, 1998 complaint. After the

meeting(s), the counselor must issue a new Counselor's report concerning

the meeting(s) and defining the complaint. Appellant shall not be

required to refile his complaint of May 14, 1998. Appellant shall not

be permitted to raise new allegations, but shall be permitted to clarify

the issues raised in his complaint.

2. If an agreement is reached on all the issues in appellant's complaint,

and the agency accepts all issues for investigation, then the agency

shall issue to appellant and his representative, if any, a letter of

acceptance.

3. If agreement cannot be reached on all the issues in appellant's

complaint; or if the agency again dismisses appellant's complaint,

in whole or in part, then the agency shall issue a new final decision

(FAD), with appeal rights to the Commission, defining the issues in

appellant's complaint and/or dismissing issues, in whole or in part.

The FAD shall not dismiss any issue de facto, by failing to define or

address issues, but shall identify each issue to be dismissed and shall

specify the legal grounds, factual bases, and evidence relied upon.

4. The agency shall also conduct a supplemental investigation, with the

assistance of appellant and his representative, if any, if so reasonably

requested to cooperate by the agency, into the timeliness of appellant's

allegations, as well as into the substance of his allegations pertaining

to his claim that the agency denied him access to EEO counseling.

5. The agency investigator shall take statements under oath or

affirmation from all persons, including appellant, with first hand

knowledge of the matters alleged, in whole or in part, in appellant's

May 14, 1998 complaint. If the interviewee has no first hand knowledge,

then the investigator shall ascertain the basis(es) for the interviewee's

statement.

6. The agency investigator shall obtain true copies of any and all

documents, including but not limited to statements under oath or

affirmation, relevant to appellant's nonselections; the job fair at

issue; his purported attempts to initiate EEO counseling; whether and

when he knew or should have known of the applicable time limitations

for initiating EEO counseling; and whether and when appellant knew or

reasonably should have known he had been discriminated against. The agency

investigator shall then issue a report of supplemental investigation.

7. The agency shall complete all the above actions, including the

supplemental investigation and issuance of a report of supplemental

investigation referenced in item (6) above; the new report of EEO

counseling referenced in item (1) above; and the issuance of the letter

of acceptance or new final decision (FAD) referenced, respectively, in

items (2) and (3) above, within ninety (90) calendar days of the date

the Commission's decision becomes final in the present matter.

8. True copies of the agency's letter to appellant and his representative,

if any, arranging a meeting with an EEO Counselor; the new report of

counseling; the report of the supplemental investigation; and the

acceptance letter and/or final decision (FAD), 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. �l6l4.604(c).

RIGHT TO FILE A CIVIL ACTION (R0993)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such 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. 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.

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:

11/05/1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

1Appellant's appeal, as we have previously indicated, was filed on

December 8, 1998. To be timely, therefore, his brief or statement in

support of his appeal had to be postmarked or delivered in person by

January 7, 1999, which fell on Thursday, a regular business day. 29 C.F.R.

��1614.403(d); .604, in pertinent parts. However, appellant's arguments in

support of his appeal were filed on January 9, 1999. Thus, we have not

considered them.

2Although the EEO Counselor's Report cited February 24, 1998, as the

date of appellant's initial contact, the record reflects, and the ECR

acknowledges, appellant's attempts to contact an EEO Counselor at least

as early as November 1997.

3Time limitations are also subject to waiver, estoppel, and equitable

tolling; as well as to extensions for certain specified reasons.

29 C.F.R. ��1614.604(c), and .105(a)(2), respectively.