Brian Byrnes, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 28, 1999
01992194 (E.E.O.C. Oct. 28, 1999)

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.