01985185
09-13-1999
Clifton D. Helton, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Clifton D. Helton v. United States Postal Service
01985185
September 13, 1999
Clifton D. Helton, )
Appellant, )
) Appeal No. 01985185
v. ) Agency No. 4I630004398
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision (FAD) concerning his complaint of unlawful employment
discrimination in violation of �501 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. �791 et seq. The FAD was dated May 12, 1998.
The appeal was postmarked on June 12, 1998. Accordingly, the timely<1>
appeal is accepted in accordance with EEOC Order No. 960.001, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint for untimely contact with an EEO Counselor.
BACKGROUND
On August 11, 1997, appellant applied for a Bid for Preferred Assignment
via PS Form 1717. On or about August 15, 1997, the agency withdrew the
bid and identified the successful bidder, B-1. On or about August 15,
1997, appellant asked his supervisor, S-1, why B-1 was the successful
bidder given that appellant had higher seniority based status with
the agency. S-1 told appellant that appellant was ineligible to be the
successful bidder on a regular bid position because he was on permanent
light duty, due to his disability. Appellant then asked S-1 to put his
statement in writing. Appellant received a letter, dated September
23, 1997, from S-1, reiterating S-1's comments of August 15, 1997,
and stating that:
You have requested and been awarded a permanent light duty job. This job
was awarded to you based on medical documentation provided by your doctor.
Among other things, you[r] doctor said that your condition would never
improve to the point of you returning to your old job, and would in
fact continue to deteriorate over the coming years. A job was created
for you which matched your physical limitations. This is the permanent
light duty job you are currently in.
Appellant then retained a representative to "investigate the matter,
[and] to develop facts regarding handicap employees." Appellant's
representative then sent a letter to the agency requesting that the agency
correct the "alleged unlawful discrimination." On or about October 23,
1997, appellant's representative and appellant received a reply letter
from the Postmaster at appellant's office rescinding S-1's decision not
to allow appellant to bid for the position.
Appellant then contacted an EEO Counselor on November 26, 1997.
The Counselor's report notes that appellant was advised that his
EEO Counselor contact was untimely because appellant said that the
incident occurred on September 23, 1997 (the date of S-1's letter).
Appellant thereafter filed a formal complaint on March 28, 1998, alleging
discrimination on the basis of physical disability (post polio syndrome)
when his supervisor denied him his contractual bidding rights.
In its FAD, the agency dismissed the complaint for untimely counselor
contact. This appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved
person must initiate contact with an EEO Counselor within 45 days of
the date of the matter alleged to be discriminatory or within 45 days of
the effective date of the personnel action. The Commission has adopted
a "reasonable suspicion" standard (as opposed to a "supportive facts"
standard) for determining whether contact with an EEO Counselor is timely.
Ball v. U.S. Postal Service, EEOC Request No. 05880247 (July 6, 1988).
Under this standard, the regulatory limitations period "is not triggered
until complainant reasonably suspects discrimination, but before all the
facts that would support a charge of discrimination have become apparent."
Bracken v. U.S. Postal Service, EEOC Request No. 05900065 (March 29,
1990).
In the instant case, we believe that appellant reasonably suspected
discrimination on September 23, 1997, when he received the letter from
his supervisor. Appellant did not, however, contact an EEO Counselor
until November 26, 1997, more than two months after appellant reasonably
suspected discrimination. The record does not contain evidence that
appellant was unaware of the time limit for contacting an EEO Counselor,
and contrary to appellant's statement on appeal, the EEO Counselor did
inform him that his Counselor contact was untimely. We agree, therefore,
that appellant's EEO Counselor contact was untimely.
CONCLUSION
Accordingly, the decision of the agency 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. 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:
September 13, 1999
______________ __________________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1 The agency did not supply a copy of a certified mail return receipt or
any other material capable of establishing the date appellant received the
FAD. Since the agency failed to submit evidence of the date of receipt,
the Commission presumes that appellant's appeal was filed within thirty
(30) days of receipt of the agency's final decision. See 29 C.F.R.
�1614.402(a).