01983038_r
04-16-1999
Theodore Bryant, Appellant, v. Lt. Gen. Kenneth A. Minihan, Director, National Security Agency, Agency.
Theodore Bryant, )
Appellant, )
)
v. ) Appeal No. 01983038
) Agency No. 98014
Lt. Gen. Kenneth A. Minihan, )
Director, )
National Security Agency, )
Agency. )
______________________________)
DECISION
On March 5, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) received by him on February 13, 1998,
pertaining to 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. In his complaint, appellant alleged that he was
subjected to discrimination on the bases of race (African American),
religion (Baptist), and in reprisal for prior EEO activity when on
February 2, 1995, appellant was removed from his Security Protective
Officer position.
The agency dismissed appellant's allegation pursuant to EEOC Regulation 29
C.F.R. �1614.107(b), for untimely counselor contact. Specifically, the
agency found that appellant did not contact a counselor until November
13, 1997, despite appellant's claim that he called an EEO Counselor
several times in March 1995. The agency found that appellant's timely
contact documentation was full of contradictory information. Further,
the agency noted that appellant's claimed date of counselor contact
occurred before appellant was removed from his position. Additionally,
the agency referenced appellant's claim in Federal District Court,
which was dismissed for appellant's failure to exhaust administrative
remedies on November 5, 1997. Bryant v. National Security Agency, Civil
Action No. WMN-97-645 (N.D. Md. Nov. 5, 1997). The agency noted that
the district court criticized appellant for failing to exercise due
diligence because he had not filed a formal complaint.
On appeal, appellant alleges, through his representative, that the
agency EEO office denied him the opportunity to file a formal complaint.
Appellant asserts that he first contacted an EEO Counselor in 1990,
but was taken �off-track� by the agency Inspector General's Office (IG).
Further, appellant claims that he was prevented from entering the agency
EEO office on March 24, 1995. Subsequently, appellant claims that he
called EEO on the same day to inquire about filing a complaint, but that
agency EEO directed appellant to call the IG. Appellant states that he
called EEO about ten (10) minutes later, and left a message, but that
his call was never returned. Then appellant claims that he called the
IG on March 27, 1995, to file a complaint, and was told the IG �would
get back to [him] later.� Additionally, appellant argues that he has
suffered from a pattern of discrimination from 1990 until his dismissal in
1995, which included reducing appellant's ratings, requiring unwarranted
psychological evaluations, discouraging appellant's self-improvement
and training efforts, placing appellant in a position where he had no
opportunity for promotion, and ignoring appellant's contributions to
the workplace. Appellant admits that he had reasonable suspicion of the
agency's discrimination, but that he was unable to file his complaints
because of the agency's actions.
In response, the agency argues that appellant's reasons for delay
should not be believed. The agency notes that no records exist to
corroborate appellant's alleged contact. The agency provided a signed
affidavit from two (2) EEO Counselors, stating that in 1994, a standard
practice was established for a record to be made of all incoming calls.
The affidavits further state that there is no record of appellant calling
in 1995. The agency also provided an affidavit from an IG official who
conceded that appellant called the IG's office on March 15, 1995, and
asked to have inaccuracies removed from his record. The agency notes,
however, that the IG's record pre-dates appellant's alleged initial
contact date. Moreover, the agency argues that even if the March 15,
1995 call constituted initial counselor contact, appellant's complaint
should be dismissed for a lack of due diligence because appellant failed
to contact the agency EEO again until November 15, 1997. Finally, the
agency argues that no continuing violation exists, because appellant
had a reasonable suspicion of discrimination as early as 1990, but never
filed a formal complaint.
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 limitations period
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.
A complainant commences the EEO process by contacting an EEO Counselor
and �exhibiting an intent to begin the complaint process.� See Gates
v. Department of Air Force, EEOC Request No. 05910798 (November 22, 1991)
(quoting Moore v. Department of Treasury, EEOC Request No. 05900194 (May
24, 1990)). For purposes of timeliness, contact with an agency official
who is �logically connected with the EEO process� is deemed a Counselor
contact. Jones v. Department of the Army, EEOC Request No. 05900435
(September 7, 1990); see Kemer v. General Services Administration,
EEOC Request No. 05910779 (December 30, 1991).
After a thorough review of the record, the Commission finds that appellant
did not contact an EEO Counselor until November 15, 1997. The agency
provided an affidavit from two EEO Counselors, denying that any calls were
received from appellant in 1995, and the record does not indicate any
further contact on the matter. Further, even if appellant's March 15,
1995 contact with the IG was contact with an official who is logically
connected with the EEO process, appellant's failure to follow-up or
further attempt to file a formal complaint shows a lack of prudent regard
for his rights. See Jackson v. USPS, EEOC Appeal No. 01966474 (Nov. 12,
1997) (finding that appellant failed to timely contact a counselor when
an EEO counselor suggested that appellant file with the IG and withdraw
his complaint, and appellant did not attempt to file a complaint again for
over one (1) year); 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. USPS, 886
F.2d 443, 446 (1st Cir. 1989) ("to find succor in equity a Title VII
plaintiff must have diligently pursued her claim"). Accordingly, the
agency's dismissal of appellant's complaint is AFFIRMED.
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:
April 16, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations