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).