The opinion of the court was delivered by: GEORGE W. LINDBERG
Plaintiff Syed Imam ("Imam") complains he was wrongfully terminated from his position with the Hines Veterans Administration Medical Center ("Hines") because of discrimination based on race, national origin and emotional disability. Imam has brought this action under the Civil Rights Act of 1991 and the Equal Employment Opportunity Act of 1972 seeking backpay as well as declaratory and injunctive relief.
Defendant, the Secretary of the Department of Veterans Affairs, has moved for summary judgment based on Imam's failure to exhaust his administrative remedies.
From January 24, 1982 to August 24, 1990, Imam was employed by Hines as a pharmacy technician. On May 18, 1990, plaintiff's treating physician sent a letter to Hines which stated that plaintiff should not work for approximately six months due to unspecified medical conditions "complicated by the stress of his financial and family circumstances." On May 21, 1990, the Chief of Pharmacy Service sent plaintiff a letter requesting supporting medical documentation from his physician. Imam did not respond.
Beginning June 1, 1990, plaintiff failed to report for work. On June 4, 1990, Hines sent plaintiff a letter by certified mail ordering him to report for duty as scheduled. The letter stated that if plaintiff did not return to work, he would be found absent without leave ("AWOL") and his employment terminated. On June 6, 1990, the Assistant Chief of Pharmacy Service attempted to contact plaintiff by phone. The Assistant Chief spoke to plaintiff's brother who informed him that plaintiff had gone to India
and would not be back for three or four months. According to his report, the Assistant Chief informed the brother that plaintiff's job was in jeopardy and requested Imam's forwarding address and phone number. The brother did not have this information.
On July 23, 1990, Hines sent plaintiff a notice of proposed removal by certified mail. The notice charged plaintiff with failing to follow established procedures in requesting leave, as stated in Hospital Policy Memorandum 5-10, and with being absent without leave for a period of 120 hours or longer, in violation of 38 CFR § 0.735-21(6). The notice informed plaintiff of his right to reply to the notice personally and/or in writing.
On August 14, 1990, Hines sent plaintiff a letter by certified mail informing him that the VA had made a final decision to terminate his employment, effective August 24, 1990. Plaintiff's brother signed for the letter on August 31, 1990. The removal letter advised plaintiff of his appeal rights and directed him to contact Deborah Perry of employee relations for further explanation of his rights.
Imam did not become aware of his termination until his return to the United States on September 30, 1990. Plaintiff first made contact with an Equal Employment Opportunity ("EEO") counselor, Norman Hogues, eight days later on October 8, 1990. Unable to resolve the matter informally, plaintiff filed a formal complaint against the Veterans Administration ("VA") on June 18, 1991. In a letter, dated July 12, 1991, the VA informed Imam that he had failed to timely contact an EEO counselor within 30 days of his termination as required by 29 CFR § 1613.214(a)(1)(i). Section 1613.214(a)(1)(i) provides that the agency may accept the complaint only if:
The complainant brought to the attention of the Equal Employment Opportunity Counselor the matter causing him/her to believe he/she had been discriminated against within 30 days of the date of the alleged discriminatory event, the effective date of an alleged discriminatory personnel action, or the date that the aggrieved person knew or reasonably should have known of the discriminatory event or personnel action.
The VA informed plaintiff that the agency could extend the 30 day time period under the regulations as follows:
The agency shall extend the time limits in this section when the complainant shows that he/she was not notified of the time limits and was not otherwise aware of them, was prevented by circumstances beyond the complainant's control from submitting the matter within the time limits; or for other reasons considered sufficient by the agency.
Plaintiff was instructed to provide the VA with reasons for an extension in accordance with this regulation. In a July 26, 1991 letter, plaintiff explained that he was late in contacting an EEO counselor because there were no counselors available to act on his claim. Plaintiff stated that he made phone calls and paid personal visits to the EEO section at Hines but that the counselors were too busy to take his case. Imam failed to name the counselors who refused to help him or the dates of the attempted contacts.
In a final decision, dated October 21, 1991, the VA General Counsel rejected plaintiff's discrimination complaint for failure to provide a sufficient reason for contacting an EEO counselor beyond the 30 day period. Plaintiff appealed the agency decision on November 4, 1991. Plaintiff argued on appeal that he did not receive his notice of termination until September 30, 1990 and that he could not contact the EEO office until October 1, 1990 due to circumstances beyond his control. The EEOC rendered a final decision on January 23, 1992 and affirmed the VA's determination that plaintiff's complaint was untimely. In refusing Imam's appeal of the final agency decision, the EEOC cited past Commission decisions that when notice is received by a complainant's family member at the complainant's last known address, the time period begins to run, absent adequate justification for tolling it.
Plaintiff moved to re-open and reconsider his case on February 27, 1992. On May 21, 1992, the EEOC denied plaintiff's request for reconsideration. Plaintiff ...