01991607
09-03-1999
Clarence Butts, Jr. Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Clarence Butts, Jr. )
Appellant, )
) Appeal No. 01991607
v. ) Agency No. 99-65928-001
)
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision (FAD) 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. The appeal is accepted in accordance
with EEOC Order No. 960.001, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint for untimely contact with an EEO Counselor.
BACKGROUND
In his formal complaint, appellant alleged discrimination on the basis
of race (African-American) when he was 1) downgraded from a Grade 13 to
a Grade 11 on June 10, 1991; and 2) issued a termination letter without
investigation on January 24, 1992, for alleged misconduct. Appellant
claims he contacted an EEO Counselor in 1991. Appellant did not provide
a specific date. Appellant wrote to the EEOC's Miami District Office who
responded to him in a letter dated January 20, 1993, informing appellant
of the procedures for filing a complaint. Appellant then contacted the
Commission through a letter dated July 27, 1994. On August 17, 1994,
we responded enclosing a copy of the regulations pertaining to filing a
complaint for appellant to pursue his case. The Commission also suggested
that he contact the EEO Office at the Naval Training Center where he had
been employed. Appellant contacted the EEO Office at the Naval Training
Center through a letter dated July 14, 1998. The EEO Office received the
letter on July 23, 1998 and an EEO Counselor began the initial interview
on September 8, 1998. Appellant was given a Notice of Final Interview
on October 8, 1998, and filed his formal complaint on October 23, 1998.
In its FAD, the agency dismissed the complaint for failure to contact
an EEO Counselor within 45 days of the effective date of the action.
The agency found that appellant contacted an EEO Counselor on July 23,
1998, which exceeds the 45-day time period. This appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1613.214(a)(1)(i)<1> requires that complaints
of discrimination be brought to the attention of the EEO Counselor
within thirty (30) calendar days of the alleged discriminatory event,
the effective date of an alleged discriminatory personnel action, or
the date that the aggrieved person knew or reasonably should have know
of the discriminatory event or 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. See Ball v. United States Postal Service, EEOC Request
No. 05880247 (July 6, 1988) (interpreting 29 C.F.R. �1613.214(a)(1)(i)).
Based on a careful review of the record, we find that the facts available
to appellant should have caused him to suspect that agency's actions
could have been motivated by unlawful discrimination; consequently,
he should have contacted an EEO Counselor prior to the expiration of
the applicable time limitation period that followed the allegation.
Therefore, we find that he was untimely when he initiated contact with
an EEO Counselor on July 23, 1998.
With regard to appellant's contention that he initiated contact with
an EEO Counselor regarding his allegation in 1991. The record shows
that appellant had contacted an EEO Counselor in 1991. However, the
Commission has held that appellants must act with due diligence in
the pursuit of their claims or the doctrine of laches may be applied.
O'Dell v. Department of Health and Human Services, EEOC Request
No. 059011. �The doctrine of laches in an equitable remedy under which
an individual's failure to diligently pursue their legal remedies can
bar their claims.� Id. Regarding appellant's complaint, we find that
the doctrine of laches is applicable. Appellant was downgraded on June
10, 1991, and terminated on January 24, 1992. Appellant alleges that he
sought counseling in 1991 but did not pursue a discrimination complaint
at that time. Appellant requested information from the Commission in
a letter dated July 27, 1994. He received a copy of the regulation
and we suggested to him that he contact the EEO Office at the Naval
Training Center. Appellant did not contact an EEO Office until July 23,
1998, which he did through a letter dated July 14, 1998. Therefore,
we determine that appellant failed to diligently pursue the matters
raised in his complaint.
CONCLUSION
Accordingly, the decision of the agency was proper and is AFFIRMED.
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 (S0993)
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. 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 (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:
September 3, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations 1 EEOC Regulation 29 C.F.R. �1614
became effective October 1, 1992. Because the allegations giving
rise to this appeal occurred prior to the effective date of Part
1614, the Part 1613 regulations are applicable to this case.