Marvin Klimek, Appellant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs,) Agency.

Equal Employment Opportunity CommissionJan 11, 1999
01981249 (E.E.O.C. Jan. 11, 1999)

01981249

01-11-1999

Marvin Klimek, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs,) Agency.


Marvin Klimek v. Department of Veterans Affairs

01981249

January 11, 1999

Marvin Klimek, )

Appellant, )

)

v. ) Appeal No. 01981249

)

Togo D. West, Jr., )

Secretary, )

Department of Veterans Affairs,)

Agency. )

)

DECISION

Appellant filed an appeal with this Commission from a final decision of

the agency concerning his complaint of unlawful employment discrimination,

in violation of the Age Discrimination in Employment Act of 1967, as

amended, 29 U.S.C. �621 et seq. and the Rehabilitation Act of 1973, as

amended, 29 U.S.C. �791 et seq. The final agency decision was received

by appellant on November 6, 1997. The appeal was postmarked November

25, 1997. Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)),

and is accepted in accordance with EEOC Order No. 960, as amended.

ISSUE PRESENTED

The issue on appeal is whether the agency properly dismissed appellant's

complaint for failure to timely initiate EEO contact.

BACKGROUND

Appellant contacted an EEO counselor on February 5, 1997, regarding

allegations of discrimination. Specifically, appellant alleged that he

was discriminated against when (1) in June of 1996 he was harassed by

agency officials when they returned his job application and told him that

it could not accept job applications from him; (2) from September 1995

to June 1996 the agency failed to hire appellant and (3) in September of

1986 appellant was forced into involuntary disability retirement in lieu

of being removed from his position with the agency. Informal efforts to

resolve appellant's concerns were unsuccessful. Thereafter on March 3,

1997, appellant filed a formal complaint alleging that he was the victim

of unlawful employment discrimination on the bases of age (8/22/42), and

disability (disability retirement, narcolepsy).

On October 31, 1997, the agency issued a final decision (FAD) dismissing

appellant's complaint for failure to timely initiate EEO contact.

Specifically, the agency determined that appellant's February 5, 1997

EEO contact concerning alleged discriminatory events beginning as early

as September of 1986, was well beyond the time limitations provided by

EEOC Regulations. The FAD further determined that EEO posters containing

relevant contact information were appropriately displayed at appellant's

work site. The agency ultimately concluded that appellant's allegations

failed to establish a continuing violation and that appellant had or

should have a reasonable suspicion of discrimination prior to February 5,

1997.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that an aggrieved

person must initiate contact with a Counselor within forty-five (45) days

of the matter alleged to be discriminatory or, in the case of personnel

action, within forty-five (45) days of the effective date of the action.

In the instant case, appellant alleges that the agency discriminated

against him when it forced him into involuntary disability retirement in

September of 1986. Appellant alleges other incidents of discrimination

including harassment by agency officials in June of 1996 and the

agency's failure to hire appellant from September 1995 to June of 1996.

According to 29 C.F.R. �1614.105(a)(1) above, appellant should properly

have initiated EEO contact within forty-five (45) days of the alleged

discriminatory event. The record reflects that appellant did not seek EEO

counseling within forty-five (45) days of the event, but instead, sought

counseling nearly eleven (11) years later on February 5, 1997. The record

indicates that in response to the agency's request that appellant provide

an explanation for his delay in seeking counseling, appellant asserts

that he was unaware of the Americans With Disabilities Act and other

disability information until the summer of 1996. The Commission is not

persuaded by appellant's assertions.

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 Ball v. United States Postal

Service, EEOC Request No. 05880247 (July 6, 1988). 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.

In the instant case, the Commission determines that appellant failed to

exhibit due diligence or prudent regard for his rights, in view of the

extended delay between his disability retirement in 1986, and the other

incidents of alleged harassment in 1995 and 1996. 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. U.S. 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"). The Commission finds that appellant

failed to act diligently in pursuing his claim.

EEOC Regulations further provide that the agency or the Commission shall

extend the time limits when the individual shows that he was not notified

of the time limits and was not otherwise aware of them, that he did not

know and reasonably should not have known that the discriminatory matter

or personnel action occurred, that despite due diligence he was prevented

by circumstances beyond his control from contacting the Counselor within

the time limits, or for other reasons considered sufficient by the agency

or the Commission.

The FAD also found that EEO posters containing relevant contact

information were prominently displayed at appellant's work site.

The agency has supplied the Commission with a copy of the EEO poster

displayed at appellant's work site as well as a statement from the EEO

program manager regarding the posted EEO information and the relevant EEO

information which had been provided to appellant at his orientation.

It is the Commission's policy that constructive knowledge will be

imputed to an employee when an employer has fulfilled its obligations

under EEOC Regulations for publicizing the time limits for contacting an

EEO Counselor. See Starr v. Department of Veterans Affairs, EEOC Request

No. 05950455 (September 28, 1995)(citing Thompson v. Department of the

Army, EEOC Request No. 05910474 (September 12, 1991)). The Commission

concludes that appellant had constructive notice of the time limit

for contacting an EEO Counselor. The Commission also determines that

appellant has failed to demonstrate that time limitations should be

extended for any reason.

CONCLUSION

Accordingly, the agency's decision dismissing appellant's complaint is

hereby AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (MO795)

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:

January 11, 1999

DATE Ronnie Blumenthal, Director

Office of Federal Operations