Lybroan K. James, Complainant,v.Gordon R. England, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionJun 14, 2001
01A04696_r (E.E.O.C. Jun. 14, 2001)

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�.