Daniel C. Porter, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 10, 1999
01986479 (E.E.O.C. Sep. 10, 1999)

01986479

09-10-1999

Daniel C. Porter, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Daniel C. Porter v. United States Postal Service

01986479

September 10, 1999

Daniel C. Porter, )

Appellant, )

)

v. ) Appeal No. 01986479

) Agency No. 4-D-280-0099-98

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

______________________________)

DECISION

On August 20, 1998, appellant filed a timely appeal of a final agency

decision, which was dated August 13, 1998, dismissing 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

July 14, 1998 complaint as whether appellant was discriminated against

when on December 6, 1997, to present he had been assigned to the Monkey

Junction Station doing nixie mail with very unusual hours. The agency

stated that the alleged discriminatory action took place on December 6,

1997, but appellant did not contact an EEO Counselor until March 9,

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.

The record indicates that on December 2, 1997, appellant was notified of

the alleged discriminatory change of work schedule, including his duty

station at the Monkey Junction Station, effective December 6, 1997, and

he had been working in that schedule ever since. On appeal, appellant

contends that he was not aware of the 45-day time limit. The Commission

has held 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). The record contains

an affidavit of a management official verifying that an EEO notice,

including the 45-day time limit, was posted at appellant's work place

at the time of the alleged incident. Thus, appellant had a constructive

knowledge of the 45-day time limit to timely contact an EEO Counselor.

Appellant also contends on appeal that he did not know that he was

discriminated against at the time of the alleged incident. Upon review,

we find, however, that appellant knew or should have reasonably suspected

discrimination when he received the alleged discriminatory schedule

change notice on or around December 2, 1997, or on December 6, 1997,

the effective date of that change. Appellant further indicates that

he unsuccessfully tried to informally resolve the matter within the

agency without filing an EEO complaint. The Commission has held that

the internal appeal of an agency action does not toll the running of

the limitation period. See Hosford v. Veterans Administration, EEOC

Request No. 05890038 (June 9, 1989). Based on the foregoing, we find

that appellant has not presented adequate justification for an extension

of the applicable time limit for contacting an EEO Counselor pursuant

to 29 C.F.R. �1614.105(a)(2).

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. 10, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations