01990856
09-17-1999
David D. Dennis, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
David D. Dennis v. United States Postal Service
01990856
September 17, 1999
David D. Dennis, )
Appellant, )
) Appeal No. 01990856
v. ) Agency No. 4-G-760-0308-98
)
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 Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. �2000e et seq., and the Age Discrimination in
Employment Act of 1967, as amended, 29 U.S.C. �621 et seq. The 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
Appellant contacted an EEO Counselor on August 8, 1998 alleging
discrimination on the bases of sex (male) and age (DOB: 12/24/40)
when he was issued a Letter of Warning (LOW) for failing to operate his
vehicle in a safe manner and for failing to report a vehicle accident.
Appellant filed a grievance over the issuance of the LOW. On July 2,
1998, a Step-B decision was issued and found that the LOW dated May 22,
1998, was issued for just cause. On August 27, 1998, appellant filed a
complaint in which he contended that on July 8, 1998, he was discriminated
on the bases of sex and age when the Step-B decision was issued.
In its FAD, the agency dismissed the complaint. It found that the alleged
discriminatory event was appellant's receipt of the LOW on May 22, 1998.
Therefore, appellant's August 7, 1998 EEO Counselor contact was beyond
the 45-day time period to contact an EEO counselor. The agency also
found that although appellant had filed a grievance, the running of the
applicable limitation period was not tolled. This appeal followed.
On appeal, appellant alleges that the agency incorrectly characterized
his complaint. According to the appellant, the FAD improperly focused on
the issuance of the LOW on May 22, 1998. Appellant's formal complaint
contends that the date on which the alleged act of discrimination took
place was July 8, 1998 when the grievance decision was issued.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(b) states that the agency shall
dismiss a complaint or a portion of a complaint that fails to comply
with the applicable time limits contained in �1614.204(c), unless the
agency extends the time limits in accordance with �1614.604(c).
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved
person must initiate contact with an EEO 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. EEOC Regulation 29 C.F.R. �1614.105(a)(2)
allows the agency or the Commission to extend the time limit if the
appellant can establish that (s)he was not aware of the time limit,
that (s)he did not know and reasonably should not have known that
the discriminatory matter or personnel action occurred, that despite
due diligence (s)he was prevented by circumstances beyond his or her
control from contacting the EEO Counselor with the time limit, or for
other reasons considered sufficient by the agency or Commission.
The Commission has adopted a "reasonable suspicion" standard, as opposed
to a "supportive facts" standard, to determine when the limitation period
is triggered. See Ball v. United States Postal Service, EEOC Request
No. 05880247 (July 6, 1988) (interpreting 29 C.F.R. �1613.214(a)(1)(i)
- the predecessor of 29 C.F.R. �1614.105(a)(1)).
Upon review of the record, the Commission finds that the discriminatory
event occurred on May 22, 1998, with the issuance of the LOW. Appellant
has not alleged, nor does the record indicate, that he only suspected
that he was being discriminated against after the grievance decision.
Appellant contacted an EEO Counselor on August 8, 1998, which was after
the expiration of the applicable time limitation period. Therefore,
the Commission finds that appellant was untimely when he initiated
contact with the EEO counselor.
With regard to the grievance procedure initiated by appellant, the
Commission has long held that the use of the negotiated grievance
procedure does not toll the time limit for contacting an EEO Counselor.
See Schermerhorn v. United States Postal Service, EEOC Request
No. 05940729 (February 10, 1995); Qualls v. Navy, EEOC Request
No. 05950273 (June 7, 1996).
Furthermore, although this issue is presently not before us, we
note appellant's allegations in his appeal that the FAD incorrectly
stated the issue of his complaint. According to appellant, the alleged
discriminatory act was the issuance of the Step-B grievance decision of
July 8, 1998. We find that this allegation constitutes a collateral
attack on the grievance determination. A collateral attack involves
a challenge to another forum's proceeding. Lau v. National Credit
Union Administration, EEOC Request No. 05950037 (March 18, 1996).
The Commission will not review allegations related to how an employee's
grievance was ultimately decided. See Bowie v. United States Postal
Service, EEOC Request No. 05910802 (February 4, 1992). Appellant's
complaint did not center on discrimination within the grievance process.
Instead, as the record indicates, appellant merely alleged dissatisfaction
with the outcome of the grievance process. Such an allegation against
the grievance decision would have constituted a collateral attack and,
therefore, would have been dismissed.
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:
Sept. 17, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations