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.