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