01994520
11-05-1999
Carl A. Brown, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service (N.E./N.Y. Metro), Agency.
Carl A. Brown, )
Appellant, )
)
v. ) Appeal No. 01994520
) Agency No. 4B-030-0017-99
William J. Henderson, )
Postmaster General, )
United States Postal Service )
(N.E./N.Y. Metro), Agency. )
______________________________)
DECISION
On May 12, 1999, appellant filed a timely appeal with this Commission from
a final agency decision (FAD) received on April 14, 1999, pertaining to
a 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. The Commission accepts appellant's appeal in accordance with EEOC
No. 960.001, as amended.
As the record reflects, appellant initiated contact with an EEO Counselor
on February 2, 1999. During the counseling period, appellant alleged
that in early January 1997 he was threatened and then forced to convert
from a Rural Carrier Associate (RCA) to a Temporary Relief Carrier (TRC).
On March 23, 1999, appellant filed a formal complaint alleging that he
was the victim of unlawful employment discrimination on the basis of
gender (male) and national origin (Scottish). Appellant's complaint
was comprised of the matter in which appellant underwent EEO counseling,
discussed above.
On April 12, 1999, the agency issued a final decision dismissing
appellant's complaint for untimely contact with an EEO Counselor.
The agency found that the alleged discriminatory event occurred on January
25, 1997 when appellant was forced to convert, and that appellant's
initial EEO contact on February 2, 1999, was more than
forty-five days (45) after the matter raised in the allegation purportedly
occurred.
On appeal, appellant offers no explanation for his delay in contacting
an EEO Counselor. In fact, appellant states that upon converting his
position, the supervisor stated that the same action will be implemented
upon similarly situated employees. However, appellant admits, that
each month from the time he converted his job description and duties,
he inquired if the same action has been taken against other employees.
Repeatedly, appellant was informed that no action had been taken.
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 (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 she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
In the case at bar, it is plainly and undeniably clear that when applying
the �reasonable suspicion standard�, appellant should have
suspected that he was being discriminated against when he first
confronted his supervisor to determine if the same action had been taken
against other employees, and was informed that no action has been taken.
Furthermore, in not offering any explanation for the untimely EEO contact,
appellant has thus failed to present adequate justification pursuant to
29 C.F.R. 1614.105(a)(2), for extending the limitations period beyond
the forty-five (45) days.
Accordingly, the agency's decision to dismiss appellant's complaint for
failure to initiate contact with an EEO Counselor in a timely fashion
was proper and is AFFIRMED.
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. �1614.604(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 to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (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:
November 5, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations