Aaron Berman, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 8, 1999
01983180_r (E.E.O.C. Apr. 8, 1999)

01983180_r

04-08-1999

Aaron Berman, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Aaron Berman, )

Appellant, )

)

v. ) Appeal No. 01983180

) Agency No. 1-C-151-0034-98

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

______________________________)

DECISION

On March 17, 1998, appellant filed a timely appeal with this Commission

from a final agency decision (FAD) dated February 20, 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., the Age Discrimination in Employment Act of 1967 (ADEA), as

amended, 29 U.S.C. �621 et seq., and �501 of the Rehabilitation Act of

1973, as amended, 29 U.S.C. �791 et seq. In his complaint, appellant

alleged that he was subjected to discrimination on the bases of race

(Caucasian), color (white), religion (Jewish), sex (male), physical

disability (back injury), age (over 40), and in reprisal for prior EEO

activity when on November 10, 1997, appellant became aware that four

career clerks were reinstated before appellant was reinstated.

The agency dismissed the allegation pursuant to EEOC Regulation 29

C.F.R. �1614.107(b), for untimely counselor contact, or alternatively

pursuant to EEOC Regulation 29 C.F.R. �1614.107(a), for failure to state

a claim. Specifically, the agency found that the incidents raised

in appellant's complaint occurred in 1991, 1992, 1993, 1994, 1995,

and 1996, but appellant did not contact an EEO Counselor until 1997.

Additionally, the agency found that appellant was not aggrieved because

of any agency action. The agency found that appellant was not hired

initially because he had not taken the required test, then because he

was seventh in line for reinstatement after taking the test, and finally

because he allowed his reinstatement application to lapse in June 1996.

Further, the agency found that appellant no longer suffered any injury

because he was hired for a career position on March 25, 1997.

On appeal, appellant notes that he sent notices to keep his file updated

twice a year as required. Appellant argues that he did not know that

four others had been reinstated before he received his career position

until November 10, 1997. Appellant attached a copy of the letters he

sent to the agency to update his reinstatement application.

A review of the record reveals that appellant first contacted a counselor

on November 10, 1997. Further, appellant told his counselor that he

became aware of the agency's discrimination on the same day, when he

discovered that other former employees had already been reinstated.

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.

The Commission finds that although appellant periodically requested

reinstatement between 1991 and 1996, appellant had no reason to suspect

discrimination until he discovered on November 10, 1997, that other

employees were being reinstated. Therefore, the limitation period for

appellant to initiate EEO contact began on November 10, 1997, and his

counselor contact on the same day was timely. Accordingly, the agency's

decision to dismiss appellant's complaint for untimely counselor contact

was improper.

EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that

an agency shall dismiss a complaint, or portion thereof, that fails to

state a claim. An agency shall accept a complaint from any aggrieved

employee or applicant for employment who believes that he or she has been

discriminated against by that agency because of race, color, religion,

sex, national origin, age or disabling condition. 29 C.F.R. �1614.103;

�1614.106(a). The Commission's federal sector case precedent has long

defined an "aggrieved employee" as one who suffers a present harm or loss

with respect to a term, condition, or privilege of employment for which

there is a remedy. Diaz v. Department of the Air Force, EEOC Request

No. 05931049 (April 21, 1994).

Appellant alleges that he was subjected to discrimination when he was

a candidate for reinstatement, but was not selected. Appellant has

stated a claim. See Bryson v. United States Parcel Service, EEOC

Appeal No. 01975097, (Jan. 21, 1999) (finding that allegation of the

agency refusing to reinstate appellant for discriminatory reasons states

a claim). Further, the agency findings that appellant's inaction delayed

his reinstatement improperly reaches the merits of appellant's complaint,

and is irrelevant to the procedural issue of whether he has stated a

justiciable claim under Title VII. See Osborne v. Department of the

Treasury, EEOC Request No. 05960111 (July 19, 1996); Lee v. United

States Postal Service, EEOC Request No. 05930220 (Aug. 12, 1993);

Ferrazzoli v. United States Postal Service, EEOC Request No. 05910642

(Aug. 15, 1991).

CONCLUSION

Accordingly, the agency's decision to dismiss appellant's complaint

is REVERSED, and the complaint is REMANDED for further processing in

accordance with this decision.

ORDER (E1092)

The agency is ORDERED to process the remanded allegations in accordance

with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant

that it has received the remanded allegations within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue to

appellant a copy of the investigative file and also shall notify appellant

of the appropriate rights within one hundred fifty (150) calendar days

of the date this decision becomes final, unless the matter is otherwise

resolved prior to that time. If the appellant requests a final decision

without a hearing, the agency shall issue a final decision within sixty

(60) days of receipt of appellant's request.

A copy of the agency's letter of acknowledgment to appellant and a copy

of the notice that transmits the investigative file and notice of rights

must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action.

The report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503(a). The appellant also has the right

to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. ��1614.408, 1614.409, and 1614.503(g). Alternatively,

the appellant has the right to file a civil action on the underlying

complaint in accordance with the paragraph below entitled "Right to File

A Civil Action." 29 C.F.R. ��1614.408 and 1614.409. A civil action for

enforcement or a civil action on the underlying complaint is subject to

the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the

appellant files a civil action, the administrative processing of the

complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. �1614.410.

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 (R0993)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court. 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 8, 1999

____________________________

DATE Ronnie Blumenthal, Director

Office of Federal Operations