01981249
01-11-1999
Marvin Klimek, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs,) Agency.
Marvin Klimek v. Department of Veterans Affairs
01981249
January 11, 1999
Marvin Klimek, )
Appellant, )
)
v. ) Appeal No. 01981249
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs,)
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 the Age Discrimination in Employment Act of 1967, as
amended, 29 U.S.C. �621 et seq. and the Rehabilitation Act of 1973, as
amended, 29 U.S.C. �791 et seq. The final agency decision was received
by appellant on November 6, 1997. The appeal was postmarked November
25, 1997. 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 for failure to timely initiate EEO contact.
BACKGROUND
Appellant contacted an EEO counselor on February 5, 1997, regarding
allegations of discrimination. Specifically, appellant alleged that he
was discriminated against when (1) in June of 1996 he was harassed by
agency officials when they returned his job application and told him that
it could not accept job applications from him; (2) from September 1995
to June 1996 the agency failed to hire appellant and (3) in September of
1986 appellant was forced into involuntary disability retirement in lieu
of being removed from his position with the agency. Informal efforts to
resolve appellant's concerns were unsuccessful. Thereafter on March 3,
1997, appellant filed a formal complaint alleging that he was the victim
of unlawful employment discrimination on the bases of age (8/22/42), and
disability (disability retirement, narcolepsy).
On October 31, 1997, the agency issued a final decision (FAD) dismissing
appellant's complaint for failure to timely initiate EEO contact.
Specifically, the agency determined that appellant's February 5, 1997
EEO contact concerning alleged discriminatory events beginning as early
as September of 1986, was well beyond the time limitations provided by
EEOC Regulations. The FAD further determined that EEO posters containing
relevant contact information were appropriately displayed at appellant's
work site. The agency ultimately concluded that appellant's allegations
failed to establish a continuing violation and that appellant had or
should have a reasonable suspicion of discrimination prior to February 5,
1997.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that an aggrieved
person must initiate contact with a Counselor within forty-five (45) days
of the matter alleged to be discriminatory or, in the case of personnel
action, within forty-five (45) days of the effective date of the action.
In the instant case, appellant alleges that the agency discriminated
against him when it forced him into involuntary disability retirement in
September of 1986. Appellant alleges other incidents of discrimination
including harassment by agency officials in June of 1996 and the
agency's failure to hire appellant from September 1995 to June of 1996.
According to 29 C.F.R. �1614.105(a)(1) above, appellant should properly
have initiated EEO contact within forty-five (45) days of the alleged
discriminatory event. The record reflects that appellant did not seek EEO
counseling within forty-five (45) days of the event, but instead, sought
counseling nearly eleven (11) years later on February 5, 1997. The record
indicates that in response to the agency's request that appellant provide
an explanation for his delay in seeking counseling, appellant asserts
that he was unaware of the Americans With Disabilities Act and other
disability information until the summer of 1996. The Commission is not
persuaded by appellant's assertions.
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. United States Postal
Service, EEOC Request No. 05880247 (July 6, 1988). 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.
In the instant case, the Commission determines that appellant failed to
exhibit due diligence or prudent regard for his rights, in view of the
extended delay between his disability retirement in 1986, and the other
incidents of alleged harassment in 1995 and 1996. See 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"). The Commission finds that appellant
failed to act diligently in pursuing his claim.
EEOC Regulations further 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 FAD also found that EEO posters containing relevant contact
information were prominently displayed at appellant's work site.
The agency has supplied the Commission with a copy of the EEO poster
displayed at appellant's work site as well as a statement from the EEO
program manager regarding the posted EEO information and the relevant EEO
information which had been provided to appellant at his orientation.
It is the Commission's policy that constructive knowledge will be
imputed to an employee when an employer has fulfilled its obligations
under EEOC Regulations for publicizing the time limits for contacting an
EEO Counselor. See Starr v. Department of Veterans Affairs, EEOC Request
No. 05950455 (September 28, 1995)(citing Thompson v. Department of the
Army, EEOC Request No. 05910474 (September 12, 1991)). The Commission
concludes that appellant had constructive notice of the time limit
for contacting an EEO Counselor. The Commission also determines that
appellant has failed to demonstrate that time limitations should be
extended for any reason.
CONCLUSION
Accordingly, the agency's decision dismissing appellant's complaint is
hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (MO795)
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. 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 (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:
January 11, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations