01A04067
03-30-2001
Eddie S. Burley, Sr., Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, Agency.
Eddie S. Burley, Sr. v. Department of Defense
01A04067
March 30, 2001
.
Eddie S. Burley, Sr.,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
Agency.
Appeal No. 01A04067
Agency No. JQ 00-031
DECISION
Complainant filed a timely appeal with this Commission from an
agency decision dated May 1, 2000, dismissing his complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq. In his
complaint, complainant alleged that he was subjected to discrimination
on the basis of his disability (physical) when:
Complainant was removed from federal service effective July 2, 1986.
The agency dismissed complainant's complaint pursuant to the regulation
set forth at 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor
contact. The agency noted that complainant initially sought counseling
regarding this issue in 1987 or 1988 and received a Notice of Final
Interview on January 22, 1988, however, he informed the counselor that
he did not want to proceed with the complaint at that time. The agency
noted that complainant made his second contact concerning this issue on
November 2, 1999, which is thirteen years after the alleged discriminatory
incident.
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.
The Commission finds that the doctrine of laches is applicable to the
facts of this case. The alleged discrimination occurred in 1986,
but complainant waited thirteen years to pursue his claim with a
second EEO Counselor. See Sapp v. United States Postal Service,
EEOC Request No. 05950666 (May 31, 1996) (EEO counselor contact
untimely under the doctrine of laches where there was a 3-year delay
between the complainant's first and second EEO counselor contacts).
On appeal, complainant presents no justification to explain the long
delay between his first counselor contact in 1986-87 and his most recent
counselor contact in 1999. This passage of time may have resulted in
the unavailability of documents and the dimming of witnesses' memories,
and likely has rendered impossible a just adjudication of complainant's
claims.
Accordingly, the agency's decision to dismiss complainant's complaint
for untimely counselor contact was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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
March 30, 2001
__________________
Date