01a03459
08-29-2000
David Lampenfeld, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
David Lampenfeld v. USPS
01A03459
August 29, 2000
.
David Lampenfeld,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A03459
Agency No. 4F-926-0049-00
DECISION
Upon review, the Commission finds that the complainant's complaint was
properly dismissed pursuant to 64 Fed. Reg. 37,644, 37,656 (1999) (to
be codified and hereinafter referred to as EEOC Regulation 29 C.F.R. �
1614.107(a)(2)), for untimely EEO contact.<1> The record discloses
that the alleged discriminatory event, a seven calender day suspension
occurred in May, 1995, after a union grievance which reduced a January
10, 1995, proposed removal to the suspension, but the complainant did
not initiate contact with an EEO Counselor until January 7, 2000, which
is beyond the forty-five (45) day limitation period.
In the complainant's response to the agency's inquiry as to why he
waited to seek EEO counseling, the complainant stated that in January,
2000, he became aware that an employee who committed a physical attack
in December, 1998, did not receive discipline while he had received the
seven-day suspension for a verbal attack. It was at that time that he
suspected he had been discriminated against, sought EEO counseling on
the matter and requested reimbursement for his suspension.
In its final agency decision (FAD), the agency found that the events
stated in the complaint occurred in December 1994, and January 1995, in
excess of 5 years prior to the EEO contact. The agency also dismissed
the complaint for failure to state a claim because the complainant had
previously sought counseling on the December, 1994, incident and did
not exercise his right to file a formal complaint.
On appeal, the complainant argues that he was timely because as soon
as he learned that the employee involved in the December 1998, incident
was not being disciplined, he contacted an EEO counselor within 10 days.
The complainant states that all he wants is to be treated fairly, if the
other employee is not going to be disciplined then the complainant �would
like to get paid back.� The agency requests that we affirm its FAD.
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.
Based on a thorough review of the record, we find that facts that would
support a charge of discrimination should have been apparent to the
complainant prior to the five years after the date of his suspension.
The complainant was aware of his suspension at the time it took place.
The fact that the complainant sought EEO counseling the day after the
incident which led to his suspension rebuts his assertion that he did
not have a reasonable suspicion of discrimination until January, 2000.
Moreover, we find that a person with a reasonably prudent regard for
his rights, would have and should have been able to ascertain facts
necessary to support a claim of discrimination, specifically whether
other employees were being treated more favorably, before five years had
elapsed. See Somers v. Department of the Navy, EEOC Request No. 05910414
(April 25, 1991).
Accordingly, the agency's final decision dismissing the complainant's
complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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
August 29, 2000
__________________
Date
1 On 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.