01992194
10-28-1999
Brian Byrnes, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Brian Byrnes v. United States Postal Service
01992194
October 28, 1999
Brian Byrnes, )
Appellant, )
)
v. ) Appeal No. 01992194
) Agency No. 1-A-113-0056-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
The Commission finds that the agency's December 23, 1998 decision
dismissing appellant's complaint on the basis of untimely EEO counselor
contact is proper pursuant to the provisions of 29 C.F.R. �1614.107(b).
The record shows that by notice of removal dated November 29, 1997,
appellant was advised that he would be removed from his position effective
January 10, 1998. By memorandum dated January 9, 1998, appellant's
removal was "held in abeyance for one week". Accordingly, appellant's
removal was effective January 17, 1998. Subsequently appellant filed a
grievance on his removal. By decision dated January 16, 1998, appellant's
grievance was denied and the removal was determined to be "appropriate
and issued for just cause".
On July 8, 1998, appellant sought EEO counseling alleging that he
had been discriminated against on the basis of race (Caucasian) when
management did not offer him a last chance agreement, as it did for a
similarly situated employee on June 18, 1998.
Efforts to resolve appellant's concerns were unsuccessful. Subsequently,
appellant filed a formal complaint of discrimination alleging that he
had been discriminated against on the basis of race when the agency did
not offer him a last chance agreement as it did for a similarly situated
employee on June 18, 1998, thereby allowing his termination of January
17, 1998, to remain in effect.
The agency issued a final decision dismissing the complaint on the
grounds that it failed to state a claim under EEOC Regulations because
it was a collateral attack on the grievance decision. The agency also
dismissed the complaint on the basis of untimely EEO counselor contact
after finding that appellant should have sought EEO counseling within
45 days of his removal.
The Commission applies a "reasonable suspicion" standard to the
triggering date for determining the timeliness of the contact with an
EEO counselor. Cochran v. United States Postal Service, EEOC Request
No. 05920399 (June 18, 1992). Under this standard, the time period for
contacting an EEO counselor is triggered when the complainant should
reasonably suspect discrimination, but before all the facts that would
support a charge of discrimination may have become apparent. Id.;
Paredes v. Nagle, 27 FEP Cases 1345 (D.D.C. 1982). Moreover, we have
held that internal appeals or informal efforts to challenge an agency's
adverse action or the filing of a grievance do not toll the running of
the time limit to contact an EEO counselor. See Hosford v. Department
of Veterans Affairs, EEOC Request No. 05890038 (June 9, 1989).
A review of the record shows that appellant was removed from his position
effective January 17, 1998. Instead of seeking EEO counseling within
45 days of said event, appellant filed a grievance. The record shows
that the grievance was denied on January 16, 1998. Appellant did not
seek EEO counseling until July 8, 1998, claiming that on June 18, 1998,
a similarly situated employee was offered a last chance agreement while
this opportunity was denied to him.
Based on the foregoing, the Commission determines that appellant should
have reasonably suspected discrimination at the time of his removal and
should have sought EEO counseling within 45 days of the effective date
of the removal. Instead, appellant did not seek EEO counseling until
July 8, 1998, well beyond the applicable time limit. Appellant has not
alleged that he was unaware of his EEO rights or that he was not aware
of the applicable time limits for initial EEO counselor contact.
Accordingly, we find that the agency's decision dismissing the complaint
on the grounds of untimely EEO counselor contact was proper and it is
hereby AFFIRMED.<1>
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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
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 consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (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:
10/28/1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 Pursuant to our decision we will not address the agency's alternate
grounds for dismissal.