01994316
07-26-2000
Eduardo Rueda-Vasquez, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Eduardo Rueda-Vasquez, )
Complainant, )
)
v. ) Appeal No. 01994316
) Agency No. 98-4956
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal with this Commission from an agency's
decision pertaining to 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.<1> The Commission accepts the appeal in
accordance with 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29
C.F.R. �1614.405).
On December 7, 1998, complainant contacted the EEO office claiming
he suffered discrimination with respect to his proficiency reports.
Informal efforts to resolve complainant's concerns were unsuccessful.
On January 11, 1999, complainant filed a formal complaint based on
reprisal.
On April 6, 1999, the agency issued a final decision dismissing the
complaint for failure to cooperate and on the alternative grounds of
untimely EEO Counselor contact. Specifically, the agency noted that,
by letter dated March 15, 1999, it requested that complainant clarify
the �performance� issue indicated on his formal complaint. According to
the agency, complainant was also asked to provide an explanation for any
events that took place more than forty-five days before his December
7, 1998 contact and cautioned that failure to respond to the request
within fifteen days could result in the dismissal of his complaint.
The agency indicated that complainant's response consisted of copies of
on-going email messages regarding the appeal of his 1996-97 and 1997-98
proficiency reports. Based on the information provided by complainant,
the agency framed the claims as follows:
The proficiency report dated November 17, 1997, for September 1996 -
September 1997; and
The proficiency report dated October 1, 1998 for September 1997 -
September 1998.
The agency determined that complainant received both reports more
than forty-five days before his December 7, 1998 Counselor contact
and failed to provide an explanation for his untimeliness. Therefore,
the agency dismissed the complaint for failure to cooperate, as well
as for untimely counselor contact. In addition, the agency noted that,
with respect to the November 17, 1997 report (claim 1), complainant had
previously received counseling on the matter. Moreover, according to
the agency, complainant had been issued a Notice of Final Interview and
formal complaint form but failed to file a formal complaint.
The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999) (to be
codified and hereinafter referred to as 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.
In the instant case, complainant admits on appeal that he previously
pursued the EEO process with respect to the 1996-97 proficiency report
(claim 1). Complainant argues that, during the period when a formal
complaint could have been filed, the responsible management official
(RMO) had promised to amend the report and therefore complainant
believed that the matter had been resolved. Complainant asserts that
thereafter, he learned that the RMO did not plan to correct the report.
Complainant states that he consequently made a �series of appeals up
the chain of command� and later raised the matter with the EEO Counselor
during counseling for the instant complaint.
The Commission has held that an appellant fails to timely contact an EEO
Counselor when he withdraws from counseling and subsequently reinitiates
the counseling in an untimely manner. See Juarez v. Department of the Air
Force, EEOC Request No. 05976151 (June 3, 1998); Williams v. Department
of Defense, EEOC Request No. 05920506 (August 25, 1992). The Commission
has also consistently held that complainants must act with due diligence
in the pursuit of their claims or the doctrine of laches may be applied.
See O'Dell v. Department of Health and Human Services, EEOC Request
No. 05901130 (December 27, 1990); Baldwin County Welcome Center v. Brown
(466 U.S. 147, 151 (1984).
In the present case, we find that while appellant may have initially
contacted the Counselor in a timely manner regarding claim 1, he abandoned
his pursuit of that issue and his subsequent raising of the issue in
December 1998 was untimely. With respect to complainant's argument that
he attempted to appeal the report before contacting the Counselor, we note
that the pursuit of relief through internal agency procedures does not
toll the time limitation for counselor contact. See Williams v. USPS,
EEOC Request No. 05910291 (April 25, 1991). Complainant has failed to
submit adequate justification for tolling or waiving the time limitation.
Therefore, the Commission finds that claim 1 was properly dismissed for
untimely Counselor contact.
With respect to the 1997-98 proficiency report (claim 2), the record
indicates complainant received the report on September 25, 1998.
According to the Counselor's Report, complainant initiated contacted
on December 7, 1998, more than forty-five days after the alleged
discrimination. On appeal, however, complainant argues that he contacted
a collateral duty EEO Counselor on November 9, 1998. A review of the
record reveals an e-mail, dated November 9, 1998, wherein complainant
stated that he would contact the suggested EEO Counselor. We find that
the e-mail simply reflects an intention to contact the EEO Counselor.
However, we are not persuaded by the record before us that contact was
actually made prior to December 7, 1998. Accordingly, we find that the
agency's dismissal of claim 2 for untimely Counselor contact was proper.
Because of our disposition we do not consider whether the complaint was
properly dismissed on other grounds.
Accordingly, the agency's dismissal of the complaint was proper and is
hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
July 26, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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.