Craig M. Ploucher, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 14, 1999
01986567 (E.E.O.C. Sep. 14, 1999)

01986567

09-14-1999

Craig M. Ploucher, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Craig M. Ploucher v. United States Postal Service

01986567

September 14, 1999

Craig M. Ploucher, )

Appellant, )

)

v. ) Appeal No. 01986567

) Agency No. 4-C-190-0128-98

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

______________________________)

DECISION

On August 28, 1998, appellant filed a timely appeal of a final

agency decision, which was received by appellant on July 31, 1998,

dismissing a portion of the allegation in his complaint, pursuant to 29

C.F.R. �1614.107(b), due to untimely EEO Counselor contact.

In its final decision, the agency identified the allegation of appellant's

May 4, 1998 complaint as whether appellant was discriminated against

based on his race (Caucasian), color (white), sex (male), and age

(DOB: 9-27-47) when since January 1998, management did not allow

him to change his starting time to 5:30 a.m., while other carriers,

including the utility person for appellant's route, were allowed to

start work earlier. The agency accepted a portion of the allegation

occurring since January 31, 1998, for investigation. The agency,

however, dismissed the remaining portion of the allegation occurring

from an unspecified date in January 1998, up through January 30, 1998,

since appellant did not contact an EEO Counselor until March 17, 1998,

which was beyond the 45-day time limit set by the regulations.

EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of

discrimination be brought to the attention of the EEO Counselor within

45 days of the alleged discriminatory event, or the effective date of

an alleged discriminatory personnel action.

The Commission has adopted a "reasonable suspicion" standard (as opposed

to a "supportive facts" standard) to determine when the limitation period

is triggered under the EEOC Regulations. See 29 C.F.R. �1614.105(a)(2);

Ball v. United States Postal Service, EEOC Request No. 05880247 (July 6,

1988). Thus, the limitations period is not triggered until a complainant

should reasonably suspect discrimination, but before all the facts that

would support a charge of discrimination have become apparent.

On appeal, appellant contends that there is no EEO poster on his work

area although there is one on his work floor (the first floor) which is

divided into several work areas. In this regard, the agency submits an

affidavit from an agency employee attesting that EEO posters, including

the 45-day time limit to contact an EEO Counselor, are displayed on

bulletin boards on each work floor (the first, second, third, fourth,

and fifth floors) at the time of the alleged incident. There is no

evidence to indicate that appellant did not have access to the poster.

We note that it is the Commission's policy that constructive knowledge

will be imputed to an employee when an employer has fulfilled its

obligation of informing employees of their rights and obligations under

Title VII. Thompson v. Department of the Army, EEOC Request 05910474

(September 12, 1991). Based on the foregoing, we find that appellant

had constructive knowledge of the requisite time limit to timely contact

an EEO Counselor since the record clearly indicates that the agency has

fulfilled its obligation of informing its employees of their EEO rights

by posting an EEO poster, which included the 45-day time limit, on the

bulletin board of his work floor at the time of the alleged incident.

In addition, appellant also contends that he had no reason to contact an

EEO Counselor until he received an answer from his supervisor for the

starting time change and he did not have "access to this information."

In this regard, appellant indicated in the Information for Precomplaint

Counseling form, which is contained in the record, that in January

1998, he, through his shop steward, was told by the supervisor that

he could not begin work at 5:30 a.m. because he did not work as fast

as the other carriers when starting earlier. Furthermore, we note

that appellant clearly indicated during his EEO counseling that the

alleged discriminatory incident occurred since January 21, 1998, when

his supervisor refused to allow him to begin work at 5:30 a.m. while

at the same time, the supervisor allowed other carriers to begin work

at 5:30 a.m. Based on the foregoing, we find that appellant knew or

should have reasonably suspected discrimination when he was allegedly

denied the schedule change at issue on January 21, 1998, or sometime

in January 1998. Thus, we find that appellant's March 17, 1998 EEO

Counselor contact with regard to the alleged incident occurring from

an unspecified date in January 1998 (or January 21, 1998), up through

January 30, 1998, was untimely.

Accordingly, the agency's final decision is hereby 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:

Sept. 14, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations