01a54277
09-22-2005
Anthony J. Romano, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area) Agency.
Anthony J. Romano v. United States Postal Service
01A54277
September 22, 2005
.
Anthony J. Romano,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area)
Agency.
Appeal No. 01A54277
Agency No. 1H-324-0018-05
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated May 13, 2005, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. In his complaint, complainant alleged
that he was subjected to discrimination on the bases of race (Caucasian),
sex (male), disability, and in reprisal for prior EEO activity when on
August 28, 2004, complainant was forced to change his tour of duty to
Tour 1 (09:00 PM - 05:30 AM) as a condition of his request to work in a
temporary light duty status but later learned that other employees with
the same medical restrictions were allowed to stay on their same tour
of duty. The agency dismissed complainant's complaint for untimely EEO
Counselor contact, pursuant to 29 C.F.R. � 1614.102(a)(2).
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 day
limitation period is triggered. See Howard v. Department of 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.
In the instant case, the agency measured the 45-day limitation period
from August 28, 2004, the date complainant alleged he was forced to work
on Tour 1 as a condition of his request to work in a temporary light
duty status. The agency concluded that his complaint was untimely given
that he did not initiate EEO Counselor contact until January 19, 2005,
which is beyond 45 days. However, on appeal, complainant argues that he
did not suspect discrimination until after August 8, 2004, when a fellow
employee anonymously left information in his truck which disclosed how
the agency allowed another employee to stay in original tour despite
having complainant's same medical restrictions. Although complainant
does not provide a specific date for when he learned this information,
we conclude that it was at or near the time he initiated contact with the
EEO counselor because complainant specifically told the EEO Counselor
that, �it had recently come to [his] attention that other employees in
a current light-duty status were being allowed to work their regular
shift.� We therefore agree with complainant in finding that he could
not have reasonably suspected discrimination until after learning this
information from a fellow employee.
The Commission has held that where there is an issue of timeliness, the
agency bears the burden of obtaining sufficient information to support a
reasoned determination of timeliness. Guy v. Department of Energy, EEOC
Request No. 05930703 (January 4, 1994) (quoting Williams v. Department
of Defense, EEOC Request No. 05920506 (August 25, 1992). Moreover, the
Commission has held that the "agency has the burden of providing evidence
and/or proof to support its final decisions." Ericson v. Department of
the Army, EEOC Request No. 05920623 (January 14, 1993). We find that
the agency has not met its burden. Thus we conclude that the agency
improperly dismissed his complaint for untimely EEO Counselor contact.
Accordingly, we REVERSE the agency's decision finding untimely EEO
Counselor contact and REMAND the complaint to agency for further
processing in accordance with the order below.
ORDER (E0900)
The agency is ordered to process the remanded claim in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claim within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant 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 complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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
(R0900)
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 within ninety (90) calendar days from the date
that you receive this decision. 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 (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:
September 22, 2005
______________________________ __________________
Carlton M. Hadden, Director Date
Office of Federal Operations