01A04696_r
06-14-2001
Lybroan K. James, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Lybroan K. James v. Department of the Navy
01A04696
June 14, 2001
.
Lybroan K. James,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A04696
Agency No. DON-00-65888-025
DECISION
Upon review, the Commission finds that the complaint was properly
dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely
EEO contact. Complainant sought EEO counseling on January 25, 2000,
claiming that he had been discriminated against on the bases of race,
sex, age and in reprisal for prior protected activity<1> when:
(a) on September 30, 1998, he was subjected to a drug test and he tested
positive;
(b) on November 25, 1998, upon advice from management, he voluntarily<2>
resigned; and
(c) on November 16, 1999, he was not rehired.
Subsequently, complainant filed a formal complaint raising these issues.
On May 26, 2000, the agency issued the final decision that is the
subject of the instant appeal, dismissing the complaint for untimely
EEO Counselor contact.
On appeal, complainant raises several contentions. First, he claims
that his January 25, 2000 initial EEO Counselor contact was timely
because on November 16, 1999, when he was informed that he would not be
rehired, he did not suspect discrimination. He claims that he started
suspecting discrimination on December 13 - 19, 1999, when after �asking
around,� he was informed by other employees that non-black applicants
had been selected for employment after failing drug tests. Second,
complainant claims that he was not familiar with the EEO process.
Finally, complainant contends that he filed a timely complaint with
the EEOC on December 23, 1999, and that this complaint was allegedly
returned to him by letter dated January 14, 2000, advising him to seek
EEO counseling with the agency.
In response to complainant's appeal, the agency states that complainant
was familiar with the EEO process.
The record in this case contains a letter dated August 25, 1999, wherein
complainant's attorney informed the agency's Acting Competency Manager
that �after months of trying to get some answers and information
regarding his options� complainant retained a law firm to analyze
potential remedies. Complainant's attorney advised the agency that
because complainant did not have the resources to pursue a appeal before
the Merit Systems Protection Board (MSPB), he was seeking the agency's
assistance. The record does not contain any response from the agency
to complainant's attorney's letter.
The Commission finds that the final agency decision was proper.
The alleged discriminatory incidents occurred on September 30, 1998,
November 25, 1998, and November 16, 1999, respectively. Complainant's
initial EEO Counselor contact occurred on January 25, 2000. Therefore,
the initial contact did not take place within 45 days of the most recent
act of discrimination. The Commission has consistently held that where
there is an issue of timeliness, the agency always bears the burden of
obtaining sufficient information to support a reasoned determination
as to timeliness. Williams v. Department of Defense, EEOC Request
No. 05920506 (August 25, 1992). Regarding the instant complaint, we
find the burden has been met. Complainant acknowledges that he filed
a prior EEO complaint in November 1995. Therefore, complainant was,
or should have been, aware of his EEO rights and duties. Accordingly,
we find that there is evidence sufficient to support application of a
constructive notice rule. Pride v. USPS, EEOC Request No. 05930134
(August 19, 1993).
Concerning claims (a) and (b), the record shows that the alleged
discriminatory events took place in September and November 1998,
and that complainant, through an attorney, had attempted to pursue
potential remedies months later, as reflected in the August 1999 letter
to the agency from complainant's attorney. The record shows that the
most recent discriminatory event (claim (c)) occurred on November 16,
1999. Complainant claims that his EEO Counselor contact was timely
regarding claim (c) because he did not suspect discrimination until
December 13, 1999, after he made inquiries and realized other non-black
applicants had been re-hired regardless of positive drug tests. We are
not persuaded by complainant's argument. On November 16, 1999, he was
aware that the agency would not rehire him. The Commission determines
that complainant should have sought EEO counseling within 45 days of
that event. We are unpersuaded by complainant's assertion that he
only developed a reasonable suspicion after the discovery of comparative
employees who were purportedly treated differently regarding the matter
addressed in claim (c).
The record discloses that the alleged discriminatory events occurred on
September 30, 1998, November 25, 1998, and November 16, 1999, but that
complainant did not initiate contact with an EEO Counselor until January
25, 2000, which is well beyond the forty-five (45) day limitation period.
On appeal, no persuasive arguments or evidence have been presented
to warrant an extension of the time limit for initiating EEO contact.
Accordingly, the agency's final decision dismissing the complaint 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
June 14, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1 In his formal complaint, complainant stated that he had filed a
discrimination/harassment complaint in November 1995.
2 We note that although the agency defined the resignation as �voluntary,�
in his resignation letter complainant stated he was �reluctantly
resigning�.