01992775
12-06-1999
Roger Curry, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Roger Curry v. Department of Veterans Affairs
01992775
December 6, 1999
Roger Curry, )
Complainant, )
)
v. ) Appeal No. 01992775
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans )
Affairs, )
Agency. )
______________________________)
DECISION
On February 18, 1999, the complainant filed a timely appeal with
this Commission from a final agency decision (FAD) received by him on
February 17, 1999, pertaining to his complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. � 2000e et seq.<1> In his complaint, the
complainant alleged that he was subjected to discrimination on the basis
of reprisal when he was not promoted on March 1, 1998.
The agency dismissed the complainant's complaint pursuant to 64 Fed. Reg.
37,644, 37,656 (1999) (to be codified and hereinafter referred to as
29 C.F.R. �� 1614.107(a)(2) and 1614.107(a)(7)), for untimely counselor
contact and failure to cooperate. Specifically, the agency dismissed
the complainant's complaint first, because he sought EEO counseling on
April 29, 1998, and he never raised the issue of "failure to promote"
which allegedly occurred on March 1, 1998. Second, the agency dismissed
the complainant's complaint because when the agency requested further
information regarding the complainant's claim of "failure to promote," the
complainant failed to respond despite being informed that his complaint
could be dismissed if he failed to respond within 15 calendar days of
receipt of the request. The record shows that the complainant received
the request for additional information on November 7, 1998.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should 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 Ball v. U. S. Postal Service,
EEOC Request No. 05880247 (July 6, 1988). Thus, the limitations period
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
29 C.F.R. � 1614.105(a)(2) further provides 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.
EEOC Regulation 29 C.F.R. �1614.107(a)(7) provides that an agency shall
dismiss a complaint, or a portion of a complaint, where the agency has
provided the complainant with a written request to provide relevant
information or otherwise proceed with the complaint, and the complainant
has failed to respond to the request within 15 days of its receipt
or the complainant's response does not address the agency's request,
provided that the request included a notice of the proposed dismissal.
In the instant complaint, the complainant sought EEO counseling on
letters of admonishment (dated March 10, 1998), counseling (dated
February 4, 1998) and reprimand (dated March 18, 1998). His June 14,
1998 formal complaint alleged only an incident of "failure to promote"
which allegedly occurred on March 1, 1998. By letter dated November 3,
1998, the agency, after noting that the complainant's EEO counseling
claims were not reflected in his formal complaint, requested that the
complainant explain why he had not sought timely EEO counseling on his
"failure to promote" claim. The letter contained the following specific
warning in bolded type:
You must provide this information within 15-calendar days of your receipt
of this letter. Failure to provide the exact information requested,
or failure to respond at all within that time limit may cause VA ORM
[to] dismiss your complaint.
The record does not show that the complainant ever responded to the
agency's November 3, 1998 letter requesting further information.
Moreover, neither the complainant, nor his representative make any
arguments on review that he did respond to the agency's request or that
he did not receive the agency's request. Further, neither argue that
he timely contacted an EEO counselor regarding his "failure to promote"
claim, or present any reason why he was prevented from making a timely
EEO contact.
Accordingly, we AFFIRM the agency's dismissal of the complainant's
complaint of discrimination pursuant to 29 C.F.R. �� 1614.107(a)(2)
and 1614.107(a)(7).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
December 6, 1999
_____________________________
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:
_________________________ __________________________
1 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.