01990960
12-10-1999
Anibal Avillan, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Anibal Avillan, )
Complainant, )
)
v. ) Appeal No. 01990960
) Agency No. 1A-101-0078-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On November 9, 1998, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) received by him on
October 22, 1998, pertaining to his complaint of unlawful employment
discrimination in violation of Age Discrimination in Employment Act of
1967, as amended, 29 U.S.C. �621 et seq.<1> In his complaint, complainant
alleged that he was subjected to discrimination on the basis of age
(DOB: 1/24/44) when:
(1) throughout 1997 and 1998, and specifically, on May 15, 1998, he was
informed that only individuals with a test score of 110 would be hired
for the Cleaner/Custodian positions; and
(2) he was given drug tests on May 29, 1995 and October 16, 1995, but
was not selected for a position.
The agency dismissed complainant's complaint pursuant to
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified as 29
C.F.R. �1614.107(a)(2)), for untimely contact with an EEO Counselor.
Specifically, the agency determined that complainant's June 29, 1998
counselor contact regarding allegations (1) and (2) was beyond the
applicable time period for seeking counseling.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the EEO 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 Howard v. Department of the Navy, EEOC Request
No. 05970852 (February 11, 1999). Thus, the time limitation 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.
Here, complainant does not indicate that he was unaware of the time
limitations for counselor contact, nor does he suggest that he was
prevented for any reason, from timely seeking counseling concerning his
allegations of discrimination. Rather, complainant argues on appeal
that he first became aware that he had been dropped from the list of
potential candidates for available positions on May 15, 1998. However,
the record contains a copy of a letter from complainant dated April 4,
1997 in which he clearly indicates that he learned on March 24, 1997,
that his name had been �referred back to the Administrative Examination
Section.� Complainant also stated in his April 4, 1997 correspondence
that he was baffled that the agency had dropped him from the list on
September 8, 1994 after he had taken a pre-screening urine test on May
29, 1995 and another drug test on October 16, 1996.
Upon review, we determine that complainant's counselor contact on June
29, 1998 was untimely. The record indicates that complainant reasonably
suspected discrimination more than 45 days before his contact of an
EEO Counselor. We also determine that complainant knew well before
May 15, 1998 that based on his test score, he had been dropped from
the agency's list of potential candidates for available positions.
Complainant has failed to present persuasive evidence on appeal, to
justify the extension of the applicable time limits for any reason.
The agency's decision dismissing complainant's complaint as untimely is
AFFIRMED for the reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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 (S1199)
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. 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:
December 10, 1999
____________________________
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 1On 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.