01982786
03-05-1999
Frederick J. Bradley, Appellant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.
Frederick J. Bradley v. Department of Health and Human Services
01982786
March 5, 1999
Frederick J. Bradley, )
Appellant, )
)
v. ) Appeal No. 01982786
) Agency No. IHS-045-98
Donna E. Shalala, )
Secretary, )
Department of Health and )
Human Services, )
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., and the Age Discrimination in Employment Act of
1967, as amended (ADEA), 29 U.S.C. �621 et seq. The final agency decision
was issued on February 27, 1998. The appeal was postmarked March 2, 1998.
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.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint on the grounds of untimely EEO Counselor contact.
BACKGROUND
Appellant alleged that he was subjected to discrimination based on his age
(64), race (Native American) and in reprisal for prior EEO activity when:
He applied for the Health Systems Administrator position and made
the panel in 1992 and 1994, but the position was not filled; instead,
a white male was assigned to the position in an acting capacity only.
Appellant's initial EEO Counselor interview took place on November
20, 1997. Appellant subsequently filed a formal complaint on February
8, 1998. The agency final decision, dated February 27, 1998, dismissed
appellant's complaint for failure to timely contact an EEO Counselor.
The agency found that appellant was notified of the necessity of
contacting an EEO Counselor regarding his allegation by letter dated March
24, 1997, which the agency stated appellant received on March 31, 1997.
According to the agency, appellant did not initiate EEO contact until
November 20, 1997, the date of his initial interview, 234 days after
receiving instructions on contacting a counselor.
The record indicates that appellant wrote a letter to EEO officials
alleging breach of a 1982 settlement agreement.<1> The agency responded
with a letter dated March 24, 1997, finding that appellant raised
three allegations of breach, as well as one issue, which is the subject
of the present appeal, which was a new allegation of discrimination.
Consequently, the agency's letter instructed appellant to seek counseling
if he wished to pursue the new allegation of discrimination. In its
final decision, the agency stated that according to the certified mail
receipt, appellant received the letter on March 31, 1997; appellant does
not dispute this statement.
On September 16, 1997, an identified agency official sent appellant
an e-mail inquiring as to whether he wished to pursue the new issue
identified in the March 24, 1997 letter. In an undated notice, appellant,
through his attorney, responded that appellant wished to consolidate his
claims against the agency. On September 18, 1997, the agency official
responded to appellant's attorney indicating that an EEO Counselor had
been assigned to appellant's case.
In the Counselor's Report, the Counselor indicated that an initial
interview could not be conducted until November 20, 1997, since appellant
was very ill during the month of October.
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 Ball v. USPS, EEOC Request
No. 05880247 (July 6, 1988). Thus, the time limitation can be triggered
before all the facts that support a charge of discrimination have become
apparent, but not until a complainant reasonably suspects discrimination.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
Clearly, appellant was aware of the discrimination alleged, and the
proper manner in which to pursue his claim when he received the March 24,
1997 letter. The agency, undisputed by appellant, states that appellant
received the subject letter on March 31, 1997. On September 16, 1997,
an agency official inquired of appellant if he wished to pursue the new
allegation identified in the March 24th letter. Appellant, through his
attorney, indicated his desire to proceed and his case was forwarded
to an EEO Counselor on September 18, 1997. We find that appellant
failed to act with due diligence in the pursuit of his new allegation.
Clearly, more than 45 days elapsed between his receipt of the March 24th
letter and his notice to the agency that he wished to pursue the subject
allegation in September 1997. Consequently, we find that appellant
failed to present adequate justification to warrant an extension of
the applicable time limit and his EEO contact was untimely. 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").
CONCLUSION
Accordingly, the Commission AFFIRMS the agency's decision to dismiss
appellant's complaint for untimely EEO Counselor contact.
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. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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:
Mar 5, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1The date of appellant's letter is unknown. A copy was not provided
with the record.