Theodore Bryant, Appellant,v.Lt. Gen. Kenneth A. Minihan, Director, National Security Agency, Agency.

Equal Employment Opportunity CommissionApr 16, 1999
01983038_r (E.E.O.C. Apr. 16, 1999)

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