David M. Bouthillier, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJul 14, 2000
01995789 (E.E.O.C. Jul. 14, 2000)

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.