0120112430
04-27-2012
Lawrence Niskey, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Headquarters), Agency.
Lawrence Niskey,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Headquarters),
Agency.
Appeal No. 0120112430
Agency No. HS-HQ-17853-2010
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated February 26, 2011, 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. Upon review, the Commission finds that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a former Information Technology Specialist in the National Communications System of the Defense Information Systems Agency (DISA/NCS) in Arlington, Virginia.1 Complainant filed an EEO complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American) and in reprisal for prior protected EEO activity when:
1. On September 12, 2002, Complainant's access to classified information was suspended, his supervisors used different office personnel policies for him than for other employees, and his supervisors used false information to start an internal investigation and background security investigation on him;
2. In September 2002, he was placed on Leave Without Pay (LWOP);
3. On March 20, 2006, he was accused of failing to appeal a Notice of Determination, his security clearance was revoked, and the Personnel Security Office presented information for an investigative report that resulted in defamation of his character;
4. On September 12, 2007, he was removed from his position of Information Technology Specialist; and
5. On March 10, 2010, he was denied his retirement pension.
The Agency dismissed the complaint, pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely EEO Counselor contact. The Agency determined that the alleged incidents occurred between September 2002 and March 2010; however, Complainant failed to initiate EEO contact until August 9, 2010, more than three months beyond the 45-day deadline. As Complainant failed to provide any justification warranting the waiver or tolling of the time limit for contacting an EEO counselor, the Agency dismissed the complaint for untimely EEO counselor contact.
CONTENTIONS ON APPEAL
On appeal, Complainant claims that he consulted with the DISA/NCS EEO Counselor in September 2002. Complainant alleges that the EEO Director at the time sent him a notice in reference to their meeting and advised him that she would forward his complaint to the Employee Relations Division since she was retiring. Accordingly, Complainant contends that he timely contacted an EEO counselor and requests that the Commission reverse the Agency's dismissal.
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 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. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 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.
The record discloses that the alleged discriminatory incidents occurred between September 12, 2002 and March 10, 2010, but Complainant did not initiate contact with an EEO Counselor until August 9, 2010. Thus, all of the alleged incidents occurred beyond the 45-day limitation period. Complainant claims that he consulted with an EEO counselor in September 2002 regarding claim (1); however, he failed to present any evidence showing that he actually met with an EEO counselor prior to August 9, 2010. Further, the Commission has consistently held that a complainant must act with due diligence in the pursuit of his claim or the doctrine of laches may apply. See O'Dell v. Dep't of Health and Human Services, EEOC Request No. 05901130 (Dec. 27, 1990). The doctrine of laches is an equitable remedy under which an individual's failure to pursue diligently a course of action could bar a claim. Complainant waited almost eight years to challenge the 2002 incidents and at least three years to contest his removal. On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO counselor contact.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint for untimely EEO counselor contact is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 9-18 (Nov. 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
April 27, 2012
Date
1 The record reveals that the National Communications System was transferred into the Department of Homeland Security in March 2003.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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