01992452
03-02-2000
Victor Bosnich, et al., Complainant, v. Aida Alvarez, Administrator, Small Business Administration, Agency.
Victor Bosnich, et al., )
Complainant, )
)
v. ) Appeal No. 01992452
) Agency No. 07-98-052
) Hearing No. 310-98-5575X
Aida Alvarez, )
Administrator, )
Small Business Administration, )
Agency. )
______________________________)
DECISION
On February 4, 1999, complainant, a class agent, filed a timely appeal of
a January 19, 1999 final agency action, dismissing his class/individual
complaint due to untimely EEO Counselor contact.<1>
The record indicates that on July 7, 1998, complainant, a former agency
employee, contacted an EEO Counselor alleging discrimination with
regard to the class complaint. Unable to resolve the matter informally,
complainant filed the class complaint dated July 20, 1998, alleging
discrimination based on race (White) and sex (male) when since 1996,
he and the class members were denied Loan Specialist, GS-11 TAPER
appointments or �non-competitive� year-and-a-day appointments in the
Area 3, Fort Worth Disaster Office. Complainant also alleged that on
February 4, 1996, a black female was selected for the position at issue.
Complainant indicated that on February 12, 1998, during an administrative
hearing on his prior individual complaint, an agency managerial official
testified that he selected one white male and one white female for the
position at issue on or around February 4, 1996. Complainant asserts
that on June 11, 1998, that official, however, changed his testimony by
stating that he did not remember those two individuals' pay grades and
appointment dates.
Thereafter, the agency forwarded the complaint to the Commission for
assignment of an Administrative Judge (AJ). On January 4, 1999, the AJ
issued a decision dismissing the complaint due to untimely EEO Counselor
contact. Specifically, the AJ noted that complainant previously filed his
prior individual complaint alleging discrimination based on race (White)
and sex (male) when he was denied his request for an appointment to a
TAPER position in Area 3. The AJ noted that after the February 12/13,
1998 hearing on the prior complaint, the AJ issued a decision finding no
discrimination concerning the case, which was implemented by the agency
in its final action. The AJ also noted that complainant appealed the
agency's final action contending that the prior AJ improperly disallowed
his witness who would have testified that the agency managerial official
in question told that witness �to set aside job applications of white
males until that official had sufficient women or minorities' and that
in reality the white males' qualifications had to far exceed those of
women and minorities in order to be hired.�<2> Based on the foregoing,
the AJ determined that although complainant contended that he did not
become aware of class-based discrimination until June 11, 1998, when the
responsible agency official changed his prior testimony, he believed,
before the hearing on his prior complaint, that the agency was engaged in
class-based discrimination against white employees. Thus, stated the AJ,
complainant's July 7, 1998 EEO contact with regard to the class complaint
at issue was untimely. The agency, subsequently, issued a final action
implementing the AJ's dismissal of the class complaint, as well as the
dismissal of the individual complaint, due to untimely EEO contact.
On appeal, complainant does not raise any new contentions.
EEOC Regulation 29 C.F.R. � 1614.204(d)(2) provides, in part, that the
administrative judge may dismiss the complaint, or any portion, for any of
the reasons listed in 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified
and hereinafter referred to as 29 C.F.R. � 1614.107. EEOC Regulation 29
C.F.R. � 1614.107(a)(2) further provides that the agency shall dismiss
an entire complaint that fails to comply with the applicable time limit
contained in � 1614.105. EEOC Regulation 29 C.F.R. � 1614.105(a)(1)
requires that complaints of discrimination be brought to the attention
of the EEO Counselor within 45 days of the alleged discriminatory event,
or the effective date of an alleged discriminatory personnel action.
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
should reasonably suspect discrimination, but before all the facts that
would support a charge of discrimination have become apparent.
Upon review, we agree with the AJ's finding that complainant's EEO
contact with regard to the class complaint at issue was untimely.
The class complaint involved the denial of a Loan Specialist position
since 1996. Complainant contended that he did not become aware of
class-based discrimination until June 11, 1998, when the responsible
agency official changed certain testimony he gave during the February
1998 hearing on complainant's prior individual complaint. Upon review,
we find that complainant knew that a black employee was hired for the
position at issue in February 1996. We, further, find that complainant
knew, at the latest in February 1998, during the hearing of his prior
complaint, that the agency was engaged in class-based discrimination
concerning the alleged matter. Thus, we find that complainant's EEO
contact on July 7, 1998, with regard to his class/individual complaint
was beyond the 45-day time limit set by the regulations. Accordingly,
the agency's final action is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). All requests and arguments must 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
timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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 (Z1199)
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:
March 2, 2000
DATE
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date 1On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all Federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at WWW.EEOC.GOV.
2The record indicates that complainant's appeal on his prior complaint
is pending before the Commission in EEOC Appeal No. 01984779.