01995789
07-14-2000
David M. Bouthillier, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
David M. Bouthillier v. United States Postal Service
01995789
July 14, 2000
David M. Bouthillier, )
Complainant, )
)
v. ) Appeal No. 01995789
) Agency No. 1B069000999
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
____________________________________)
DECISION
INTRODUCTION
Complainant filed a timely appeal with this Commission from the
agency's final decision dated June 21, 1999, dismissing his complaint
of unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. Section 2000e et seq.<1>
The Commission accepts the appeal in accordance with 64 Fed. Reg. 37,
644, 37, 659 (1999)(to be codified at 29 C.F.R. � 1614.405).
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed complainant's
complaint for untimely EEO Counselor contact.
BACKGROUND
Complainant contacted an EEO Counselor on January 26, 1999, and filed
a formal complaint on April 27, 1999, alleging race discrimination in
violation of Title VII. In his complaint, complainant alleged that he
was subjected to discrimination on the basis of his race (Caucasian) and
color (white) when: on October 9, 1998, he was issued a Notice of Removal,
effective on November 14, 1998, for being absent without leave (AWOL).
In the final agency decision, the agency dismissed complainant's complaint
pursuant to EEOC Regulation 29 C.F.R. � 1614.107(a)(2) for failing to
initiate contact with an EEO Counselor within forty-five days of the
alleged discriminatory event.
ANALYSIS AND FINDINGS
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 at 29 C.F.R. � 1614.105(a)(2) further 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.
In the case at bar, the record discloses that the alleged discriminatory
event occurred on November 14, 1998. Complainant, however, did
not initiate contact with an EEO Counselor until January 26, 1999.
Complainant further fails to proffer any justification for his untimely
contact or reasonable explanation for not complying with the EEO
Regulations. The Commission consequently finds that the complainant's
contact was beyond the forty-five (45) day limitation period and that
his complaint was properly dismissed.
CONCLUSION
On appeal, the Commission finds no evidence in the record supporting an
extension for the time limit to contact an EEO Counselor. Accordingly,
the final agency decision dismissing the complaint for untimely contact
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:
07-14-00 ________________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
FOR OFO INTERNAL CIRCULATION ONLY
FOR PROCEDURAL CASES
TO: CARLTON M. HADDEN, ACTING DIR.
OFFICE OF FEDERAL OPERATIONS
APPEAL NUMBER: 01995789
AGENCY NUMBER: 1B069000999
(APPROVED) (DATE)
REQUEST NUMBER:
HEARING NUMBER:
THE ATTACHED DECISION IS RECOMMENDED FOR APPROVAL:
TITLE Legal Intern/Researcher
NAMES Elizabeth Donahue
INITIAL
DATE REVIEWED July 7, 2000
(SUPERVISOR: Steve Zanowic
(DIVISION DIRECTOR): Marie Fitzgerald
1.) (COMPLAINANT(S) David M. Bouthillier
2.) (AGENCY) USPS
3.) (DECISION) Affirmed
4.) (STATUTE(S) Title VII
5.) (BASIS(ES) RW, OC
6.) (ISSUE(S) D2
7.) (TYPIST/DATE/DISK) ED0 / July 7, 2000
SPELL CHECK: YES
(PLEASE CHECK ALL APPLICABLE CODES)
PROCEDURAL CODES
LETTER CLOSURE CODES
X 3K - PROCEDURAL DECISION
? 3N - APPEAL DENIED/DISMISSED
? 3P - ADVERSE INFERENCE RAISED
X 4H - OFO AFFIRMED FAD
? 3M - OFO REVERSED AND REMANDED
? 4J - OFO MODIFIED FAD
? 3L - OFO VACATED/REMANDED ALL OF
AGENCY'S MERITS DECISION
? 4Q - COMPLIANCE REQUIRED
? 3B - FAD RESCINDED
? 3C - DUPLICATE DOCKET NUMBER
? 3D - WITHDRAWAL
? 3E - COMPLAINT SETTLED
? 3G - OTHER LETTER CLOSURE
? 3R - RETURN TO AG FOR CONSOLIDATION
? 3S - RETURN TO AJ FOR CONSOLIDATION
? 7N - CIVIL ACTION FILED
[REVISED AS OF 2/3/00]
1On 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.