Alphonso Joinder, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Mid West Areas), Agency.

Equal Employment Opportunity CommissionApr 3, 2000
01a00207 (E.E.O.C. Apr. 3, 2000)

01a00207

04-03-2000

Alphonso Joinder, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Mid West Areas), Agency.


Alphonso Joinder, )

Complainant, )

)

v. ) Appeal No. 01A00207

) Agency No. 1J-607-0097-97

William J. Henderson, ) Hearing No. 210-98-6467X

Postmaster General, )

United States Postal Service, )

(Great Lakes/Mid West Areas), )

Agency. )

____________________________________)

DECISION

On October 4, 1999, complainant filed a timely appeal with this Commission

from a final agency decision (FAD) 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., and

the Age Discrimination in Employment Act of 1967 (ADEA), as amended,

29 U.S.C. � 621 et seq.<1> In his complaint, complainant alleged that he

was subjected to discrimination on the bases of race (African American)

and age (DOB; 2/1/47), when, beginning on July 28, 1997, he was denied

training for a supervisory position.

On July 30, 1997, complainant contacted an EEO Counselor and alleged

he was discriminated against as referenced above. Informal efforts

to resolve his complaint were unsuccessful, and on November 28, 1997,

complainant filed a formal complaint of discrimination. The record

reveals that on January 20, 1998, the agency accepted the complaint for

investigation. Complainant subsequently requested a hearing before an

EEOC Administrative Judge (AJ).

On February 5, 1999, the AJ remanded the case to the agency to complete

a supplemental investigation within forty-five days. Specifically, the

AJ found complainant objected to the agency's framing of the complaint,

and argued that the accepted issues in the complaint should be broadened

to include the denial of training for the last seventeen years.

For instance, complainant alleged that the agency afforded certain

comparable employees more favorable treatment starting in late 1970.

As such, the AJ ordered that the agency to make a determination as to

whether the

scope of complainant's allegations were timely raised with an EEO

counselor, and if not, provide complainant with appeal rights to the

Office of Federal Operations.

The agency completed its supplemental investigation on May 10, 1999.

On September 17, 1999, the agency issued a final decision finding that,

although complainant alleged he was denied training in 1983, he failed to

bring his concerns to management's attention because, �he did not want to

rock the boat.� The agency found that EEO posters referencing the time

period for initiating contact with an EEO Counselor were on display at

complainant's post office. In light of complainant's failure to contact

an EEO Counselor until July 30, 1997, the agency dismissed complainant's

claims of discrimination with �dates prior to July 28, 1997" as untimely.

On appeal, complainant contends that the agency unreasonably delayed in

conducting the supplemental investigation. Further, he argues that the

EEO poster at the Central Garage is not prominently displayed, and was

not displayed at all in the Central Garage until recently.

EEOC Regulation 29 C.F.R. � 1613.214(a)(1)(i), effective prior to October

1, 1992, required that

complaints of discrimination be brought to the attention of an EEO

Counselor within 30 days. EEOC Regulation 29 C.F.R. � 1614.105(a)(1),

effective October 1, 1992, requires that complaints of discrimination

be brought to the attention of an EEO Counselor within 45 days of

the date of the matter alleged to be discriminatory or, in the case

of a personnel action, within 45 days of the effective date of the

action. EEOC Regulation 29 C.F.R. � 1614.105(a)(2) provides that the

agency or the Commission shall extend the 45-day time limit under certain

circumstances. The Commission has adopted a "reasonable suspicion"

standard (as opposed to a "supportive facts" standard) to determine

when the limitation period is triggered. See Ball v. USPS, EEOC Request

No. 05880247 (July 6, 1988). Thus, the limitation period is not triggered

until a complainant reasonably suspects discrimination, but before all

the facts that support a charge of discrimination have become apparent.

The Commission has held that the time requirements for initiating EEO

counseling could be waived as to certain allegations within a complaint

when the complainant alleged a continuing violation; that is, a series

of related discriminatory acts, one of which fell within the time period

for contacting an EEO Counselor. See McGivern v. U.S. Postal Service,

EEOC Request No. 05901150 (December 28, 1990); Starr v. U.S. Postal

Service, EEOC Appeal No. 01890412 (April 6, 1989). It is important,

in determining whether a claim for a continuing violation is stated,

to consider whether a complainant had prior knowledge or suspicion of

discrimination and the effect of this knowledge. See Berry v. Board of

Supervisors, 715 F.2d 971 (5th Cir. 1983), cert. denied, 479 U.S. 868

(1986); Sabree v. United Brotherhood of Carpenters and Joiners Local

No. 33, 921 F.2d 396 (1st Cir. 1990). The Commission described Sabree

as holding that a plaintiff who believed he or she was subjected to

discrimination had the obligation to file promptly or lose his or her

claim, versus a complainant who is unable to appreciate that he or she is

being discriminated against until he or she has lived through a series of

acts and is thereby able to perceive the overall discriminatory pattern.

Hagan v. Department of Veterans Affairs, EEOC Request No. 05920709

(January 7, 1993).

Upon review, the Commission finds that the agency's decision to dismiss

the complaint was proper. The record contains complainant's affidavit

that was taken during the supplemental investigation. Therein,

complainant testified that as early as 1983, ten individuals both in

and outside of his protected classes were treated more favorably than he

was when they recieved training and increased promotional opportunities.

This testimony reveals complainant was aware that race and/or age were

allegedly factors in the assignment of training opportunities. In light

of complainant's reasonable suspicion as early as 1983, that he was being

discriminated against, his reliance on the continuing violation theory

is misplaced. Additionally, complainant cites multiple officials who

allegedly denied him training and promotional opportunities. Accordingly,

we find complainant's EEO contact of July 30, 1997 was untimely with

respect to those incidents that occurred more than forty-five days

prior to July 30, 1997. Additionally, complainant has not offered

sufficient justification to extend the applicable time limitations.

We also note that the Commission has held that appellants must act with

due diligence in the pursuit of their claim or the doctrine of laches

may be applied. See O'Dell v. Department of Health and Human Services,

EEOC Request No. 05901130 (December 27, 1990).

The record also contains an affidavit from an individual who testified she

has been a member of the EEO staff since 1981. She testified that since

1981, EEO posters were prominently displayed on the workroom floor at

complainant's facility, as well as all Personnel Offices, EEO Officers,

Administrative Offices, City Letter Carrier Stations, Finance Stations,

Airport Mail Center, Irving Park Road Processing & Distribution Center,

the Computer Forwarding System Unit, and Maintenance Offices. We find,

therefore, that complainant had constructive knowledge of the applicable

time limits. See Santiago v. United States Postal Service, EEOC Request

No. 05950272 (July 6, 1995).

Although complainant indicates that he did not want to �rock the boat�

if he pursued an EEO complaint, the Commission has repeatedly held that

mere fear of reprisal is an insufficient justification for extending the

time limitation for contacting an EEO Counselor. See Duncan v. Department

of Veterans Affairs, EEOC Request No. 05970315 (July 10, 1998); Kovarik

v. Department of Defense, EEOC Request No. 05930898 (December 9, 1993).

Indeed, complainant's admission that he did not want to contact an EEO

Counselor at the time supports the agency's position that complainant

was aware of his obligation to initiate the complaint process at the

appropriate time.

In light of the aforementioned, we AFFIRM the agency's final decision

which dismissed the incidents that occurred prior to July 28, 1997.

Complainant and the agency are advised, however, that complainant's

claims of discrimination that have been dismissed on timeliness grounds

may be used as background evidence in support of his timely claim.

As for complainant's claim that he was denied training in July 1997,

the matter should be remanded to an AJ as complainant has not withdrawn

his hearing request. As such, we REMAND the complaint to the appropriate

hearing unit for the assignment of an AJ.

ORDER

The complaint is remanded to the Hearings Unit of the appropriate EEOC

field office for scheduling of a hearing in an expeditious manner.

The agency is directed to submit a copy of the complaint file to the

EEOC Hearings Unit within fifteen (15) calendar days of the date this

decision becomes final. The agency shall provide written notification

to the Compliance Officer at the address set forth below that the

complaint file has been transmitted to the Hearings Unit. Thereafter,

the Administrative Judge shall issue a decision on the complaint in

accordance with 29 C.F.R. � 1614.109 and the agency shall issue a final

action in accordance with 29 C.F.R. � 1614.110.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

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

complainant. If the agency does not comply with the Commission's order,

the complainant may petition the Commission for enforcement of the order.

29 C.F.R. � 1614.503(a). The complainant 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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �

1614.503(g). Alternatively, the complainant 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. �� 1614.407

and 1614.408. 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 complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. The appellate decision involved a clearly erroneous interpretation

of material fact or law; or

2. The appellate decision will have a substantial impact on the policies,

practices, or operations of the agency.

Requests to reconsider, with supporting statement or brief, MUST BE FILED

WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR

DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS OF

RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 29 C.F.R. � 1614.405); Equal Employment Opportunity Management

Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).

All requests and arguments must 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 timely filed if it is received by

mail within five days of the expiration of the applicable filing period.

See 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.604). The request or opposition must

also include proof of service on the other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T1199)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed AND that portion

of the complaint which has been remanded for continued administrative

processing. 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 your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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 (Z1199)

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 3, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date Equal Employment Assistant1On November 9, 1999, revised

regulations governing the EEOC's federal sector complaint process

went into effect. These regulations apply to all federal sector

EEO complaints pending at any stage in the administrative process.

Consequently, the Commission will apply the revised regulations found

at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.