01993535
03-16-2000
Tyrone Patterson, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Tyrone Patterson, )
Complainant, )
)
v. ) Appeal No. 01993535
) Agency No. 98-1162
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
On March 26, 1999, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) dated March 4, 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, complainant alleged that he was subjected to
discrimination on the bases of race (African-American) and in reprisal
for prior EEO activity when:
He was not promoted on September 26, 1997;
He was not hired for a full time position on September 26, 1997; and
He was harassed on September 26, 1997.
The agency dismissed the complaint for untimely counselor contact,
because it found that complainant failed to contact an EEO Counselor with
the intent to file a complaint until February 26, 1998. Specifically,
the agency found that complainant may have spoken with an EEO Counselor
in August 1997, but did not wish to proceed with his complaint �until
[his] work contract expired.� Further, the agency found that complainant
did not return to discuss his claims with the counselor until February
26, 1998. Finally, the agency found that complainant had notice of
the forty-five day time limit through EEO posters and several training
classes, despite complainant's argument that the Counselor informed him
in August 1997, that he would have 180 days to file a complaint.
The agency attached a copy of complainant's training report that includes
a list of three EEO training sessions complainant attended on January 21,
1996, October 27, 1996, and March 26, 1997. The agency also provided a
statement from the EEO Counselor dated October 8, 1998, asserting that
she spoke with complainant in August 1997, but he stated that he �may
have an EEO case, but not until [his] work contract expires.� According
to the counselor, she informed complainant to contact her again if he
wished to initiate counseling. The Counselor also denies informing
complainant that he had 180 days to file a complaint. The agency also
included a statement from the facility EEO Manager dated December 31,
1998, stating that the facility had fifteen official bulletin boards
containing EEO information. Finally, the agency provided a copy of the
poster explaining the forty-five day time limit.
The record includes a Standard-Form-52 (SF-52) dated September 15, 1997.
The SF-52 officially terminated complainant effective September 26,
1997, because of �lack of project funds.�
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 Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). 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.
EEOC Regulations 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.
To satisfy the forty-five day contact requirement, the Commission
consistently has required complainants to contact an EEO Counselor
or official logically connected with the EEO process, and �exhibit[ ]
an intent to begin the EEO process.� EEOC - Management Directive (MD)
110, as revised Nov. 9, 1999, 2-1; See Washington v. Government Printing
Office, EEOC Request No. 05970523 (Jan. 19, 1999) (expressing belief that
discrimination occurred, without exhibiting intent to file a complaint,
did not constitute Counselor contact for time limitation purposes).
In August 1997, complainant contacted a counselor, but did not exhibit
an intent to begin the EEO process at that time. Further, complainant
was told to come-back to begin the EEO process, but did not return to the
Counselor until February 26, 1998. Given complainant's multiple training
sessions, and the plethora of posters containing EEO information, the
Commission finds that complainant had notice of the forty-five day time
limit, and was not misled by a Counselor. Accordingly, complainant's
February 26, 1998 contact was untimely.
CONCLUSION
Accordingly, the agency's dismissal 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).
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:
March 16, 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 Assistant1On 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.