Audrey M. Lewis, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMar 15, 2000
01993830 (E.E.O.C. Mar. 15, 2000)

01993830

03-15-2000

Audrey M. Lewis, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Audrey M. Lewis, )

Complainant, )

)

v. ) Appeal No. 01993830

) Agency No. 98-4188

Togo D. West, Jr., )

Secretary, )

Department of Veterans Affairs, )

Agency. )

____________________________________)

DECISION

On April 7, 1999, complainant filed a timely appeal with this Commission

from a final agency decision (FAD) received by her on March 17, 1999,

pertaining to her 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.<1> In her complaint, complainant alleged that she

was subjected to discrimination on the basis of race (African-American)

when she was subjected to a hostile work environment from September 1996

through March 1998, in the form of verbal harassment from a co-worker

and management's failure to address the conflict.

The agency dismissed the complaint for untimely counselor contact.

Specifically, the agency found that complainant initially contacted

an EEO Counselor regarding her harassment claim on September 30, 1998.

The agency noted that it requested complainant to explain her untimeliness

by letter dated January 25, 1999. In complainant's response, dated

February 10, 1999, the agency found that complainant restated the claim,

but did not address timeliness. Further, the agency noted that the

January 25, 1998 request asked complainant to explain the difference

between the present complaint and a prior complaint, Agency No. 98-3449,

concerning harassment on overlapping dates. Since complainant responded

that she was unsure what the present complaint concerns, the agency

alternatively dismissed the claim for failure to state a claim.

On appeal, complainant argues that she informed an EEO Counselor at her

work site about the harassment, but he took no action. Complainant notes

that shortly after the contact, she requested and received a transfer to a

new duty station -- the Intensive Care Unit (ICU). She argues that once

the EEO office moved off-site, she made contact concerning new issues.

During the course of this contact, complainant asserts that she asked

about the status of her harassment claim, and was informed that there was

no record of the claims. Complainant also requests that the Commission

�consider my lack of experience with the EEO process.�

In response, the agency notes that the �counselor� with whom complainant

claims to have conversed was the office EEO Manager. The agency disputes

that complainant spoke with the EEO Manager concerning these claims,

noting that the EEO Manager provided a signed statement denying any such

contact. The agency also argues that complainant never raised her present

harassment claims in the counseling of her prior complaint. Further,

the agency surmises that complainant is arguing a lack of knowledge

of applicable EEO time limits, and notes that the EEO Manager provided

evidence that complainant was aware of the applicable time limits.

In the EEO Manager's statement, signed June 2, 1999, he claims to have

no recollection of any conversation with complainant regarding her

claims of harassment. Further, the EEO Manager states that he does not

actively counsel complainants, and routinely instructs them to contact an

EEO Counselor if they raise such issues with him. The EEO Manager also

stated that complainant was aware of the time limits through periodic

memoranda concerning the EEO process, postings of EEO information on

bulletin boards, and a training class concerning the EEO process that

complainant attended on July 16, 1998. An attendance list from a July

16, 1998 training class entitled �Office of Resolution Management -

EEO training,� and a pamphlet listing, inter alia, the time limitations

for EEO Counselor contact, is attached to the EEO Manager's statement.

The record also contains a copy of the complaint file for Agency

No. 98-3445. The Counselor's Report, dated August 28, 1998, and the

formal complaint, dated September 18, 1998, both refer to harassment

at complainant's duty station in the ICU beginning in March 1998.

The claims do not mention any incidents occurring at complainant's

prior duty station. In an October 28, 1998 letter providing additional

information for Agency No. 98-3445, complainant explains the harassment

she suffered from the Chief ICU nurse. Complainant also notes that

the phone number in the Office of Resolution Management pamphlet was

not operating from May - June 1998, and she was unable to reach anyone

until July 1998 (after obtaining an alternate phone number).

The record for the present case, Agency No. 98-4188, includes two

�Report of Contact� documents signed by the EEO Counselor for the present

complaint. In the first report, dated September 17, 1998, the counselor

notes that complainant called to check on the status of her harassment

claim involving the co-worker. According to the report, complainant

believed that she filed a complaint in late 1997 or early 1998 when she

discussed the matter with the EEO Manager. The Counselor reportedly asked

complainant if she wished to file a new complaint concerning the issue,

and complainant responded that she wished to follow-up on the previously

filed claim. In an additional notation on the September 17, 1998 report,

the counselor notes that the EEO Manager only found a claim filed by the

co-worker against complainant in 1996. The EEO Manager explained that

pursuant to a settlement agreement in the 1996 complaint, complainant

wrote a letter of apology to the co-worker on May 7, 1997, but that no

record existed of a complaint filed by complainant against the co-worker.

In the second report, dated September 24, 1998, the counselor spoke with

complainant to clarify the circumstances of the present claim.

In her formal complaint, dated October 28, 1998, complainant explained

that after writing the letter of apology to the co-worker, complainant

approached the EEO Manager and requested that he file a complaint on

her behalf against management for its failure to take action when she

complained of the co-worker's harassment.

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

discrimination should be brought to the attention of the Equal Employment

Opportunity 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 she was not notified of the

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

and reasonably should not have known that the discriminatory matter or

personnel action occurred, that despite due diligence she was prevented

by circumstances beyond her control from contacting the Counselor within

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

or the Commission.

It appears that complainant first raised her claim with a Counselor, and

intended to pursue it, on September 17, 1998, not September 30, 1998.

Nonetheless, this contact was more than forty-five days after the most

recent incident alleged.

The agency adequately rebutted complainant's repeated claims that she

asked the EEO Manager to file a complaint on her behalf. Further, even

if complainant intended to file a complaint by speaking with the EEO

Manager in late 1997, she failed to diligently pursue her complaint

when she failed to �follow-up� with her complaint for an entire year.

See Baldwin County Welcome Center v. Brown, 466 U.S. 147, 151 (1984)

(per curiam) ("One who fails to act diligently cannot invoke equitable

principles to excuse lack of diligence"); Rys v. United States Postal

Service, 886 F.2d 443, 446 (1st Cir. 1989) ("to find succor in equity

a Title VII plaintiff must have diligently pursued her claim").

Regarding complainant's familiarity with EEO procedures, the Commission

finds that complainant is no novice unaware of EEO complaint requirements,

given her involvement with the co-worker's 1996 complaint, her own

prior complaint (Agency No. 98-3446), the July 16, 1998 training class,

and the pamphlet of EEO information she received. The Commission notes

that complainant contacted a counselor regarding harassment from the

ICU in July 1998, (Agency No. 98-3446) but failed to raise the present

claims during that counseling. Therefore, the agency's dismissal for

untimely counselor contact was proper.<2>

CONCLUSION

Accordingly, the agency's dismissal is 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 15, 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 Equal Employment Assistant1On 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.

2Since we are affirming the agency's dismissal on the grounds of untimely

counselor contact, we will not address the agency's alternative grounds

for dismissal, i.e., failure to state a claim.