Thomas E. Ivanyi, Complainant,v.Shaun Donovan, Secretary, Department of Housing and Urban Development, Agency.

Equal Employment Opportunity CommissionMar 10, 2009
0120070277 (E.E.O.C. Mar. 10, 2009)

0120070277

03-10-2009

Thomas E. Ivanyi, Complainant, v. Shaun Donovan, Secretary, Department of Housing and Urban Development, Agency.


Thomas E. Ivanyi,

Complainant,

v.

Shaun Donovan,

Secretary,

Department of Housing and Urban Development,

Agency.

Appeal No. 0120070277

Agency No. EEO-06-086

DECISION

Upon review, the Commission finds that the agency's decision dated

September 11, 2006, dismissing complainant's complaint due to untimely

EEO Counselor contact is proper pursuant to 29 C.F.R. � 1614.107(a)(2).

In his complaint, dated July 25, 2006, complainant alleged discrimination

based on age (over 40) and disability (50% service connected) when: (1)

he learned on April 12, 2006, of a response to a Freedom of Information

Act (FOIA) request that showed a factual basis for his belief that

discrimination was a factor in his non-selection for the position of

Supervisory Enforcement Analyst, GS-1101-14, announced under Vacancy

Announcement Numbers 04-MSA-2004-0036 (MSA) and 04-DEU-2004-0023 (DEU);

and (2) the Human Resource Division, Atlanta, Georgia, rejected his

application for Vacancy Announcement Number 04-MSA-2004-0036, in violation

of the Office of Personnel Management VetGuide because he submitted the

application after the closing date.

With regard to claim (1) of the position under DEU announcement, the

record indicates that complainant was notified via letter dated December

10, 2004, from the agency that no selections were made. With regard to

claim (2), the record also indicates that complainant was notified via

letter dated November 18, 2004, from the agency that his application

was received after the closing date and he would not receive further

consideration. Complainant, however, did not contact an EEO Counselor

with regard to the nonselections until April 12, 2006, which was beyond

the 45-day time limit set by the regulations. On appeal, complainant

contends for the first time that he did not become aware of discrimination

until April 12, 2006, when he received the agency's last response to

his several FOIA requests he made after the nonselections at issue.

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

reasonably should have suspected discrimination, but before all the

facts that would support a charge of discrimination have become apparent.

Complainant indicates that on March 24, 2005, he initially submitted

a FOIA request to obtain all releasable information regarding the

announcements at issue. On appeal, complainant acknowledges that he

received the agency's response dated April 18, 2005, which included the

selectee's SF-50 and application material and the applicant eligibility

forms for both MSA and DEU announcements. In response, the agency

indicates that the April 18, 2005 FOIA information along with the fact

that complainant worked in the same office as the selectee and was

thus able to observe him, was sufficient that complainant should have

reasonably suspected discrimination more than 45 days before contacting

an EEO Counselor on April 12, 2006. Despite his contentions on appeal,

we also find that complainant fails to present adequate justification

to warrant an extension of the applicable time limit for contacting an

EEO Counselor.1

The agency's final decision dismissing complainant's complaint on

timeliness grounds is AFFIRMED.2

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 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 77960,

Washington, DC 20013. 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 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 (S0408)

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 (Z1008)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with

the Court 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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

3/10/09

__________________

Date

1 The agency submits a copy of its intranet website which specifically

includes the 45-day time limit to contact an EEO Counselor at the time of

the alleged incidents, thereby demonstrating complainant's constructive

knowledge under the regulations.

2 We note that although the agency also dismissed claim (2) on the

alternative grounds for failure to state a claim pursuant to 29 C.F.R. �

1614.107(a)(1), we need not address such since its dismissal is affirmed

due to untimely EEO Counselor contact.

??

??

??

??

2

0120070277

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013