01A14434_r
01-03-2002
Daniel Couvertier, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Daniel Couvertier v. United States Postal Service
01A14434
January 3, 2002
.
Daniel Couvertier,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A14434
Agency No. 1A-102-0043-00
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) dismissing his complaint of unlawful employment
discrimination in violation of Section 501 of the Rehabilitation Act
of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
Complainant alleged that he was discriminated against on the basis
of disability when on October 14, 1995, he was restored to duty and
erroneously placed at the PS level 4 pay scale (instead of the correct
PS level 6 scale).
In its FAD, the agency dismissed complainant's complaint for failure
to contact an EEO Counselor in a timely manner. The agency found that
complainant should have become aware of the alleged discriminatory act
in 1995, when his position was purportedly placed at the PS level 4 pay
scale in error. Because complainant sought EEO counseling on February
25, 2000, the agency dismissed the claim for failure to contact an EEO
Counselor during the 45-day period.
On appeal, complainant reiterates that his complaint was improperly
dismissed. Complainant argues that his February 25, 2000 EEO contact
was timely. In his brief, complainant wrote �Most of these problems
were reported through various Union grievances . . . . , however after 6
years of the appellant's time seeking such corrections he has recognized
that these items are not his fault and he has not been treated in a
reasonable manner.� Complainant also argues that the claim is part of
a continuing violation.
The record in this case contains complainant's Step One Grievance summary
dated December 27, 1999. In the summary, a management official wrote
�The Union contends that since the grievant was unaware of the erroneous
administrative error, and when he found out about it in 1995, he notified
the agency the fault lies totally with management.�
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.
A review of the record persuades the Commission that complainant
had, or should have had a reasonable suspicion of unlawful employment
discrimination when his position was erroneously placed at the PS level
4 pay scale at the time the alleged incident of discrimination occurred
in 1995 . On appeal, complainant states that his concerns were reported
through several grievances. The Commission has held that the use of
the grievance process or other internal appeal process does not toll the
time limit for contacting an EEO Counselor. See Speed v. United States
Postal Service, EEOC Request No. 05921093 (June 24, 1993). Therefore,
the Commission finds that the reasons set forth by complainant do not
justify his delay in contacting an EEO Counselor.
Despite complainant's assertion that the matter raised in the instant
complaint is part of a continuing violation, we find that a continuing
violation analysis is not necessary. The record reflects that the most
recent discriminatory event identified by complainant occurred back
in 1995, when his position was erroneously placed at the PS level 4
pay scale and that no acts of purported discrimination as identified by
complainant occurred within forty-five days of his initial EEO Counselor
contact. Furthermore, we find that complainant failed to submit adequate
justification for an extension of the 45-day limitation period.
Accordingly, after a careful review of the record, we find that the
agency properly dismissed the
complaint and hereby AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 3, 2002
__________________
Date