05980111
06-24-1999
William J. Malinowski, Appellant, v. Janet Reno, Attorney General, Department of Justice, Agency.
William J. Malinowski v. Department of Justice
05980111
June 24, 1999
William J. Malinowski, )
Appellant, )
)
v. ) Request No. 05980111
) Appeal No. 01966461
Janet Reno, ) Agency No. F-96-4791
Attorney General, )
Department of Justice, )
Agency. )
______________________________)
DENIAL OF REQUEST FOR RECONSIDERATION
On October 21, 1997, William J. Malinowski (appellant) initiated
a request to the Equal Employment Opportunity Commission (EEOC)
to reconsider the decision in William J. Malinowski v. Janet Reno,
Attorney General, Department of Justice, EEOC Appeal No. 01966461
(September 26, 1997). EEOC Regulations provide that the Commissioners
may, in their discretion, reconsider any previous Commission decision.
29 C.F.R. �1614.407(a). The party requesting reconsideration must
submit written argument or evidence which tends to establish one or
more of the following three criteria: new and material evidence is
available that was not readily available when the previous decision
was issued, 29 C.F.R. �1614.407(c)(1); the previous decision involved
an erroneous interpretation of law, regulation or material fact, or
misapplication of established policy, 29 C.F.R. �1614.407(c)(2); and the
previous decision is of such exceptional nature as to have substantial
precedential implications, 29 C.F.R. �1614.407(c)(3). For the reasons
set forth herein, appellant's request is denied.
ISSUE PRESENTED
The issue presented is whether the previous decision properly affirmed
the agency's dismissal of an allegation in appellant's complaint.
BACKGROUND
Appellant initiated EEO counseling on November 9, 1995, and thereafter
filed a formal complaint alleging discrimination based on age (over 40)
and national origin (Polish) when: (1) since 1992 the Career Board has not
granted his requests to serve in the position of Relief Supervisor; and
(2) he was placed in a Temporary Duty assignment on September 30, 1995.
In its final decision (FAD), the agency accepted Issue 2 but dismissed
Issue 1 for untimely EEO Counselor contact. In taking this action,
the FAD rejected appellant's assertion that the denial of his requests
to serve as a Relief Supervisor constituted a continuing violation.
Appellant appealed and the prior decision affirmed the dismissal of
Issue 1. Specifically, the decision found that appellant should have
reasonably suspected discrimination more than 45 days prior to his
initiation of EEO counseling. The decision found that, for that reason,
appellant had not established a continuing violation.
The record reveals that Issue 1 dates back to 1992, when appellant made
several requests to serve as a Relief Supervisor that were not granted
by the Career Board (the Board). Appellant made another request in
February 1995 and was told by his supervisor (the Responsible Official,
RO) in March 1995 that the request had been denied by the Board. In his
request for reconsideration, appellant states that he did not suspect
discrimination until late September 1995 when he learned that the minutes
from the Board's meetings indicated that the Board had never discussed
his requests to be a Relief Supervisor. According to appellant, this
led him to believe that the RO may have been discriminating against him
by not presenting his requests to the Board.
ANALYSIS AND FINDINGS
As discussed above, the Commission may, in its discretion, reconsider
any previous decision when the party requesting reconsideration submits
written argument or evidence which tends to establish that any of
the criteria of 29 C.F.R. �1614.407 is met. In order for a case to
be reconsidered, the request must contain specific information which
meets the requirements of this regulation. It should be noted that the
Commission's scope of review on a request to reconsider is limited. Lopez
v. Department of the Air Force, EEOC Request No. 05890749 (September 28,
1989). Furthermore, a request to reconsider is not "a form of second
appeal." Regensberg v. United States Postal Service, EEOC Request
No. 05900850 (September 7, 1990); Spence v. Department of the Army,
EEOC Request No. 05880475 (May 31, 1988).
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved
person must initiate contact with an EEO Counselor within 45 days of
the date of the matter alleged to be discriminatory or within 45 days of
the effective date of a personnel action. This period may be extended
when the appellant 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 an EEO Counselor within the time
limits; or for other reasons considered sufficient by the agency or
the Commission. 29 C.F.R. �1614.105(a)(2). The Commission has adopted
a "reasonable suspicion" standard (as opposed to a "supportive facts"
standard) for determining whether contact with an EEO Counselor is timely.
Ball v. U.S. Postal Service, EEOC Request No. 05880247 (July 6, 1988).
Under this standard, the regulatory limitations period "is not triggered
until a complainant reasonably suspects discrimination, but before all
the facts that would support a charge of discrimination have become
apparent." Bracken v. U.S. Postal Service, EEOC Request No. 05900065
(March 29, 1990).
Although appellant argues that he did not suspect discrimination until
September 1995, documentation in the record reveals that, in fact,
he suspected it much earlier than that. Specifically, it is apparent
from appellant's complaint that, throughout the period during which his
requests to be a Relief Supervisor were being denied, he was cognizant
that there were a number of younger individuals of non-Polish national
origin who were allowed to serve in that capacity. It is also apparent
from appellant's complaint that he suspected that this was discriminatory.
Based on this evidence, the Commission agrees with the prior decision
and finds that appellant first suspected discrimination more than 45
days prior to his initiation of EEO counseling.
The Commission also agrees that Issue 1 does not constitute a continuing
violation. Specifically, we find that the denials of appellant's requests
to serve as a Relief Supervisor had a degree of permanence that should
have triggered his awareness of the duty to assert his rights. See Berry
v. Board of Supervisors, 715 F.2d 971 (5th Cir. 1983). Furthermore,
the Commission finds that these denials are not related by a common
nexus or theme to the timely allegation raised by appellant, i.e., the
Temporary Duty assignment in which he was placed in September 1995. See
Vissing v. Nuclear Regulatory Commission, EEOC Request No. 05890308
(June 13, 1989).
Accordingly, the Commission agrees that Issue 1 was properly dismissed
as untimely.
CONCLUSION
After a review of appellant's request for reconsideration, the previous
decision, and the entire record, the Commission finds that appellant's
request fails to meet the criteria of 29 C.F.R. �1614.407(c).
Therefore, it is the decision of the Commission to DENY appellant's
request. The decision in EEOC Appeal No. 01966461 (September 26, 1997)
remains the Commission's final decision. There is no further right of
administrative appeal on a decision of the Commission on this Request
for Reconsideration.
RIGHT TO FILE A CIVIL ACTION (P0993)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil 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. 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.
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:
June 24, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat