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.