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.