01993001
02-01-2000
Clyde Cox, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Clyde Cox, )
Complainant, )
)
v. ) Appeal No. 01992947
) Agency No. 1H372000198
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
INTRODUCTION
On February 27, 1999, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) pertaining to his complaint
of unlawful employment discrimination in violation of Section 501 of
the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1>
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed complainant's
complaint for untimely EEO contact.<2>
BACKGROUND
Complainant initiated EEO contact on September 17, 1997<3>, and thereafter
filed a formal complaint on November 21, 1997 alleging that he was the
victim of unlawful employment discrimination on the basis of disability
(physical). Specifically, complainant alleged, on August 1, 1997<4>,
he was required to complete a fitness-for-duty examination based on the
false statements of his supervisor. The false statements caused the
agency doctor to revoke complainant's driving privileges.
The agency issued a final decision on February 9, 1999 dismissing
complainant's complaint for untimely EEO contact. This appeal followed.
ANALYSIS AND FINDINGS
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 he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
In this case, complainant affirmed that August 1, 1997 was the date
of his fitness-for-duty examination. At that time, he learned that
his supervisor made a false statement which necessitated the exam.
In his appeal, complainant did not dispute the exam date or the date of
initial EEO contact indicated in the record. The Commission finds, for
purposes of reasonable suspicion, the 45-day time limit was triggered when
complainant completed his examination and was informed of his supervisor's
statements. Accordingly, the agency's decision to dismiss is affirmed.
CONCLUSION
It is the decision of the Commission to AFFIRM the agency's dismissal
of complainant's complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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. 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 (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:
February 1, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date 1On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at WWW.EEOC.GOV.
2The agency's final decision closed complainant's complaint with a
finding of no discrimination as well as dismissed the same complaint
for untimely EEO contact. Only the dismissal is addressed herein.
3Complainant did not dispute the contact date in his appeal. It is
addressed within this footnote because the agency's dismissal involved
timeliness. The EEO Counselor's Inquiry Report indicated September 17,
1997 as the date of complainant's initial EEO contact. In addition, the
record contained a Certificate of Receipt and Certificate of Service for
What You Need to Know About EEO, which is a form that must be returned
with an employee's Information for Precomplaint Counseling form.
The certificate was signed by complainant and dated September 17, 1997.
4Complainant did not dispute the claim date in his appeal. It is
addressed within this footnote because the agency's dismissal involved
timeliness. In his formal complaint, complainant indicated August
6, 1997 as the date of his required fitness-for-duty examination.
However, he indicated August 1, 1997 as the examination date in his EEO
Investigative Affidavit. In his formal complaint, complainant further
indicated that the supervisor's false statement and the examination forced
him from his craft at Level 5 to another craft at Level 2. The record
contained a memorandum dated August 1, 1997 from complainant requesting
a transfer to a custodial position as soon as possible.