01970411
10-14-1998
Kevin J. McCants, Appellant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Kevin J. McCants, )
Appellant, )
)
v. ) Appeal No. 01970411
) Agency No. 951010
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
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 Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. �2000e et seq. The final agency decision was issued on September
12, 1996. The appeal was postmarked October 16, 1996. 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.<1>
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint on the grounds that he failed to contact an
EEO Counselor in a timely manner.
BACKGROUND
The record reveals that appellant wrote a letter dated September 1,
1994, to the agency Secretary alleging discrimination with regard to
his nonselection for an attorney position in May 1992. Appellant was
referred to an EEO Counselor based on the receipt of this letter. In a
formal EEO complaint dated October 6, 1995, appellant alleged that he
was discriminated against on the bases of his sex (male) and race (black)
when he was not selected for an attorney position with the Office of the
General Counsel in or around May 1992. Appellant stated that he wrote the
aforementioned letter to the agency Secretary promptly after he learned
from an agency recruiter, when he was visiting the agency in August 1994,
that at least nine black females were selected for attorney positions
even though their academic credentials were "less impressive" than his.
In its final decision, the agency dismissed the complaint on the grounds
that appellant failed to contact an EEO Counselor in a timely manner.
The agency determined that appellant's EEO contact was more than
45 days after the alleged discrimination occurred. The agency noted
that appellant raised his claim of discrimination more than two years
after receiving notice of his nonselection. According to the agency,
a reasonable person would have pursued the issue of his nonselection and
possible discrimination at the time he was notified he was not selected
rather than wait over two years after the fact. The agency maintains
that appellant suspected discrimination during his interview given
that appellant noted that he was informed there was only one black male
attorney in the Office of General Counsel. The agency determined that
appellant made a conscious decision not to pursue the reasons for his
nonselection because he hoped to receive a job offer at a later date.
The agency concluded that the information appellant received in August
1994, about nine black women being hired did not constitute sufficient
grounds to waive the 45-day limitation period for contacting an EEO
Counselor.
On appeal, appellant contends that he did not suspect discrimination
with regard to his nonselection until he learned in August 1994,
that nine black females from Howard University Law School had been
selected for attorney positions during the selection process in 1992.
Appellant states that he was more qualified for the position because he
went to a higher ranked law school, the University of Iowa Law School.
Appellant also argues that he had outstanding qualifications based on
his clerkship for an Associate Justice of the Wisconsin Supreme Court,
and his employment during law school with two large corporate law firms.
ANALYSIS AND FINDINGS
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 45 days of the effective date of the action.
EEOC Regulation 29 C.F.R. �1614.105(a)(2) provides that the agency or the
Commission shall extend the 45-day time limit when the individual shows
that he or she was not notified of the time limits and was not otherwise
aware of them, that he or she did not know and reasonably should not have
known that the discriminatory matter or personnel action occurred, that
despite due diligence he or she was prevented by circumstances beyond his
or her control from contacting the counselor within the time limits, or
for other reasons considered sufficient by the agency or the Commission.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the limitation
period was triggered. See Ball v. USPS, EEOC Request No. 05880247
(July 6, 1988). Thus, the limitation period was not triggered until a
complainant should have reasonably suspected discrimination, but before
all the facts that would have supported a charge of discrimination had
become apparent.
The record reveals that appellant contacted the agency by letter dated
September 1, 1994, with regard to his nonselection for an GS-11 General
Attorney position in 1992. Appellant contends that he did not suspect
discrimination until he learned in August 1994, that the agency hired nine
black females from Howard University Law School for attorney positions
in 1992. Appellant states that he was informed that the agency made
these selections based on a decision to increase diversity by hiring
black women. The agency stated that appellant should have suspected
discrimination when he was notified of his nonselection in 1992, since
he was informed at that time that there was only one black male attorney
in the Office of General Counsel.
We find that appellant failed to exhibit due diligence or prudent regard
for his rights, in view of the extended delay between 1992, when he
was not selected and was aware of the low representation of black males
in the office to which he applied and August 1994, when he learned from
an agency recruiter, while visiting the agency in 1994, that nine black
females, who appellant believes were less qualified, were hired. Based on
appellant's knowledge of the low representation of black males in 1992,
and his belief in his superior qualifications, we find that appellant
should have reasonably suspected discrimination prior to August 1994,
over two years later. 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").
Accordingly, the agency's decision to dismiss appellant's complaint on
the grounds of untimely EEO contact was proper and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
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:
Oct. 14, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations1The record does not indicate when
appellant received the final agency decision. Absent evidence
to the contrary, we find that the instant appeal was timely filed.