Lida Firouzi, Complainant,v.Joseph D. Duffey, Director, United States Information Agency, Agency.

Equal Employment Opportunity CommissionMay 5, 2000
01992279 (E.E.O.C. May. 5, 2000)

01992279

05-05-2000

Lida Firouzi, Complainant, v. Joseph D. Duffey, Director, United States Information Agency, Agency.


Lida Firouzi, )

Complainant, )

)

v. ) Appeal No. 01992279

) Agency No. OCR-9901

Joseph D. Duffey, )

Director, )

United States Information Agency, )

Agency. )

)

DECISION

The Commission finds that the agency's January 13, 1999 decision

dismissing the complaint on the grounds of untimely EEO Counselor

contact, is proper pursuant to the provisions of 64 Fed. Reg. 37,644,

37,656 (1999) (to be codified and hereinafter referred to as 29 C.F.R. �

1614.107(a)(2)).<1>

The record shows that Complainant sought EEO counseling on August 17,

1998, alleging that she had been discriminated against on the basis

of �political motivation� when on June 30, 1979, she was hired as

an International Radio Broadcaster (IRB) at the GS-9 level while

others hired at the same time were hired as IRBs at the GS-11 level

and she continued to be paid at the GS-9 level until August 8, 1990.

Complainant subsequently filed a formal complaint of discrimination.

The agency issued a final decision dismissing the complaint on the basis

of untimely EEO counselor contact after finding that Complainant had

failed to seek EEO counseling within the 45-day time limit provided by

EEOC Regulations. The agency noted that �a total of 19 plus years have

passed since Complainant was hired and 18 years since being promoted to

the GS-11 level�.<2>

On appeal, Complainant contends that she was unaware of the �45 day

time limitation for initiating [EEO counselor] contact�. In response

to Complainant's appeal the agency argues that it has provided training

classes for all employees concerning the EEO requirements. The agency

also contends that it has posted on its premises and provided to all

its employees EEO information.

The Commission has consistently held that where there is an issue of

timeliness, the agency always bears the burden of obtaining sufficient

information to support a reasoned determination as to timeliness.

Williams v. Department of Defense, EEOC Request No. 05920506 (August

25, 1992). Regarding the instant complaint, the agency has not met this

burden. The record shows that the agency has not provided any evidence to

show that Complainant was, or should have been, aware of the 45-day time

limit, except for its arguments on appeal that indicate that EEO posters

were on display and that EEO training was provided to all employees.

The agency has failed to provide independent evidence of such posting

and training, i.e., affidavit by an appropriate agency official.

Accordingly, the agency has failed to provide evidence sufficient to

support application of a constructive notice rule. Pride v. USPS,

EEOC Request No. 05930134 (August 19, 1993).

Nevertheless, the Commission recognizes that appellant has waited almost

twenty years to raise her allegations with an EEO counselor. We have

consistently held that complainants 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. 05901130

(December 27, 1990). Based on the record, we find that Complainant

failed to act with due diligence regarding her claim. Accordingly,

the agency's decision dismissing the complaint is 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:

May 5, 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 ASSISTANT1

On 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.

2 The EEO Counselor's Report reflects that complainant had alleged

that �because of the political situation in Iran [in the late 1970's],

her hiring at the lower level than some of her colleagues may have been

politically motivated.� In her formal complaint, Complainant did not

raise the basis of national origin discrimination, but simply noted

�other� on the complaint form. However, in its final decision the

agency defined Complainant's complaint as a claim of discrimination

on the basis of national origin (Iranian). The Commission notes that

political affiliation is not a basis for filing an EEO complaint.

Senicola v. Department of Veterans Affairs, EEOC Request No. 05950739

(February 1, 1996).