Valentine Alsante, Appellant,v.William S. Cohen, Secretary, Department of Defense, (Defense Finance and Accounting Service), Agency.

Equal Employment Opportunity CommissionNov 8, 1999
01995179 (E.E.O.C. Nov. 8, 1999)

01995179

11-08-1999

Valentine Alsante, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Finance and Accounting Service), Agency.


Valentine Alsante v. Department of Defense

01995179

November 8, 1999

Valentine Alsante, )

Appellant, )

)

v. ) Appeal No. 01995179

) Agency No. DFAS-IN-RO-99-027

William S. Cohen, )

Secretary, )

Department of Defense, )

(Defense Finance and )

Accounting Service), )

Agency. )

______________________________)

DECISION

Complainant filed an appeal with this Commission from an agency decision

concerning his complaint of unlawful employment discrimination in

violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. �2000e et seq., and the Age Discrimination in Employment Act

of 1967, as amended, 29 U.S.C. �621 et seq. The final agency decision

was dated May 27, 1999. The appeal was postmarked June 9, 1999.

Accordingly, the appeal is timely (see, 29 C.F.R. �1614.402(a)), and

is accepted in accordance with EEOC Order No. 960, as amended. We note

here that the agency's May 27, 1999 decision only addressed allegation

(1) of the instant complaint. On September 13, 1999, the agency issued

a decision addressing complainant's remaining allegation.

BACKGROUND

The record indicates that on March 19, 1999, complainant initiated

contact with an EEO Counselor regarding allegations of discrimination.

Specifically, complainant alleged that he was discriminated against when:

(1) he learned on March 10, 1999 that was not selected for the position of

Accountant, GS-510-5/11 under Vacancy Announcement Number RM-500-98; and

(2) following its decision to hire him, the agency unlawfully made

complainant's employment effective December 8, 1997 rather than offering

him a medical accommodation after his surgery in November 1997.

Informal efforts to resolve his concerns were unsuccessful. On May 11,

1999, complainant filed a formal complaint, alleging that he was the

victim of unlawful employment discrimination on the bases of national

origin (Italian), sex (male), age (DOB 6/11/50), physical disability

(surgery in November 1997) and reprisal (prior EEO activity).

On May 27, 1999, the agency issued a final decision accepting for

investigation, allegation (1) of complainant's complaint. On June 2,

1999, the agency requested that complainant provide an explanation for

his delay in seeking counseling regarding allegation (2). The record

indicates that neither complainant nor his attorney of record replied

to the agency's request. On September 13, 1999, the agency issued a

decision dismissing allegation (2) on the grounds that complainant failed

to initiate timely contact with an EEO Counselor. Specifically, the

agency found that complainant's EEO contact on March 19, 1999 regarding

allegation (2) was well beyond the applicable time limitation for seeking

counseling.

ANALYSIS AND FINDINGS

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

discrimination should be brought to the attention of the EEO Counselor

within forty-five (45) days of the date of the matter alleged to be

discriminatory or, in the case of a personnel action, within forty-five

(45) days of the effective date of the action. The Commission has

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

facts" standard) to determine when the forty-five (45) day limitation

period is triggered. See Howard v. Department of the Navy, EEOC Request

No. 05970852 (February 11, 1999). Thus, the time limitation is not

triggered until a complainant reasonably suspects discrimination, but

before all the facts that support a charge of discrimination have become

apparent.

EEOC Regulations provide that the agency or the Commission shall extend

the time limits when the individual shows that he was not notified of the

time limits and was not otherwise aware of them, that he did not know

and reasonably should not have known that the discriminatory matter or

personnel action occurred, that despite due diligence he was prevented

by circumstances beyond his control from contacting the Counselor within

the time limits, or for other reasons considered sufficient by the agency

or the Commission.

Regarding allegation (2), the agency determined that appellant's EEO

contact on March 19, 1999, was untimely because appellant knew or

should have had reason to know well before March 1999 that the agency

was allegedly failing to accommodate his disability. However, the

Commission has held that a failure to provide a "reasonable accommodation

may constitute a recurring violation, that is, a violation that recurs

anew each day that the employer fails to provide the accommodation."

See Mitchell v. Department of Commerce, EEOC Appeal No. 01934120 (March

4, 1994). Here, the agency's alleged violation recurred each day that

the agency failed to provide appellant with a reasonable accommodation.

Therefore, appellant's counselor contact on March 19, 1999 was timely.

For the reasons stated herein, the Commission finds that the agency's

decision dismissing allegation (2) of appellant's complaint was improper.

CONCLUSION

Accordingly, that portion of the agency's decision dismissing allegation

(2) for untimely counselor contact is hereby REVERSED. Allegation (2)

is REMANDED to the agency for processing in accordance with applicable

regulations.

ORDER (E1092)

The agency is ORDERED to process the remanded allegation in accordance

with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant

that it has received the remanded allegation within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue to

appellant a copy of the investigative file and also shall notify appellant

of the appropriate rights within one hundred fifty (150) calendar days

of the date this decision becomes final, unless the matter is otherwise

resolved prior to that time. If the appellant requests a final decision

without a hearing, the agency shall issue a final decision within sixty

(60) days of receipt of appellant's request.

A copy of the agency's letter of acknowledgment to appellant and a copy

of the notice that transmits the investigative file and notice of rights

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. �1614.604(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 (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:

11/08/1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations