Raymond Crowther, Complainant,v.Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionSep 13, 2000
01a04139 (E.E.O.C. Sep. 13, 2000)

01a04139

09-13-2000

Raymond Crowther, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.


Raymond Crowther v. Department of Veterans Affairs

01A04139

September 13, 2000

.

Raymond Crowther,

Complainant,

v.

Hershel W. Gober,

Acting Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A04139

Agency No. 994822

DECISION

Raymond Crowther (complainant) filed a timely appeal with this Commission

from a final agency decision (FAD) dated April 25, 2000, dismissing his

complaint of unlawful employment discrimination in violation of Title VII

of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e

et seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation

Act), as amended, 29 U.S.C. � 791 et seq.<1> The appeal is accepted

pursuant to 29 C.F.R. � 1614.405. In his complaint, complainant alleged

that he was subjected to discrimination on the bases of his race (Black)

and disability (pneumonia) when he was terminated in June or July 1994.

The agency dismissed the complaint pursuant to EEOC Regulation 29 C.F.R. �

1614.107(a)(2), for failing to initiate contact with an EEO Counselor

within the applicable 45-day time period established by 29 C.F.R. �

1614.105(a)(1). The agency noted that complainant did not contact an

EEO Counselor until September 14, 1999, more than five years after he

was terminated. In considering complainant's argument that he failed

to timely initiate contact because he was unaware of the EEO process,

the agency found that complainant had constructive knowledge of the

45-day time period. Specifically, the personnel officer during the

time in question at the facility where complainant worked noted that

all new employees were required to attend an orientation program that

included information about the EEO process and that this requirement

was in place during 1994. The personnel officer also noted that even

if complainant did not attend this orientation, as he alleged, he should

have been aware of the time limits based on the facility's EEO bulletin

boards which existed at the time in question and contained EEO posters

with the relevant information.

The agency also noted that although complainant was incarcerated at

certain periods between his termination and his EEO contact, he states

in his complaint that he attempted to obtain another job with the federal

government for three years after his termination. From this, the agency

concluded that complainant was not incarcerated until at least three

years after his termination and therefore would not have been prevented

from contacting an EEO Counselor due to incarceration, even assuming

incarceration was a valid justification for delayed contact.

On appeal, complainant reiterates that he contacted an EEO Counselor as

soon as he became aware of the EEO process, during his incarceration.

He notes that he never claimed it was his incarceration that prevented

timely contact, but rather his ignorance of the process. He also states

that he did not attend the orientation program and that he was sure that

the information on the EEO posters would have been helpful to him had it

been explained when he was a new employee. He states that the letters

he wrote to various EEO offices in 1999 requesting information about

the EEO process support his claim that he was not aware of the process

until 1999.

After a careful review of the record, we find that the agency correctly

dismissed this complaint. EEOC Regulation 29 C.F.R. � 1614.105(a)(1)

requires that complaints of discrimination 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). "The time period is triggered as soon as a complainant suspects

discrimination and the complainant may not wait until all supporting

facts have become apparent." Whalen v. Department of Justice, EEOC

Request No. 05960147 (September 18, 1997).

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.

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

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

this burden because it provided insufficient evidence to establish

that complainant was aware, or should have been aware, of the 45-day

time limit. The FAD asserts that the facility in question required

all new employees to attend an orientation program which discussed EEO

issues and that bulletin boards near complainant's work area provided

information on EEO Counselors. In making this claim, the agency relied

on a letter from a personnel officer which states that orientation was

provided and included �several pertinent local topics including EEO...�

and that the bulletin boards included information on EEO Counselors

�complete with names, departments, and contact phone numbers.� We

note, however, that the record does not contain affidavits attesting

to these facts or copies of EEO posters that were posted at the time.

Moreover, no where in this letter does the personnel officer state that

the orientation and/or the bulletin board information included information

on time frames. Accordingly, while it is the Commission's policy that

constructive knowledge will be imputed to an employee when an employer

has fulfilled its obligation of informing employees of their rights and

responsibilities under Title VII, we find that the agency has failed to

establish that it met this obligation. See Thomas v. Department of the

Army, EEOC Request No. 05910474 (September 12, 1991); Pride v. United

States Postal Service, EEOC Request No. 05930134 (August 19, 1993).

Nevertheless, the Commission recognizes that complainant waited

more than five years to raise his allegation with an EEO Counselor.

We have consistently held that complainants must act with due diligence

in the pursuit of their claims and that failure to do so may result

in dismissal of the claims under the doctrine of laches. See O'Dell

v. Department of Health and Human Services, EEOC Request No. 05901130

(December 27, 1990); see also, Office of Federal Operations' decisions

Thomas v. Department of the Treasury, EEOC Appeal No. 01A00891 (August 23,

2000) (complaint dismissed for failure to act with due diligence where

complainant failed to contact an EEO Counselor until more than five

years after the allegedly discriminatory incident); Firouzi v. United

States Information Agency, EEOC Appeal No. 01992279 (May 5, 2000)

(agency failed to provide sufficient evidence to support application

of constructive notice rule, but complaint still dismissed for failure

to act with due diligence where complainant failed to contact an EEO

Counselor until almost twenty years after the allegedly discriminatory

incidents); Kane v. Air Force, EEOC Appeal No. 01956766 (August 19, 1996)

(complaint dismissed for failure to act with due diligence, despite

the fact that the agency may have mislead complainant concerning his

EEO rights, where complainant contacted an EEO Counselor more than five

years from the date of the allegedly discriminatory incident and from

the date he received the allegedly misleading information).

In the case at hand, complainant argues that he was not aware of the

existence of the EEO process until five years after his termination

and that he therefore did not attempt to challenge his termination

until that point. However, while the agency did not provide sufficient

evidence to establish that complainant should have been aware of the

time requirements for contacting an EEO Counselor, it did establish that

information concerning the EEO process in general was posted throughout

the facility, including on a bulletin board in close proximity to

complainant's work area. As there was therefore information available

to complainant as to who he could contact to discuss his termination,

his failure to make any efforts to do so until more than five years

after his termination establishes that he did not pursue his claim with

due diligence. Accordingly, the complaint was properly dismissed by

the agency and the FAD is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0800)

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 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 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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

September 13, 2000

__________________

Date

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 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.