01A55963
03-14-2006
Drew A. Weissmuller, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Drew A. Weissmuller,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A55963
Agency No. 1F-853-0028-05
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated August 25, 2005, dismissing his complaint of unlawful
employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. and
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et
seq. Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO
Counselor contact.
In his complaint, complainant alleged that he was subjected to
discrimination on the bases of age (D.O.B. 06/04/54) and reprisal for prior
protected EEO activity when, effective January 8, 2005, complainant
received a pay for performance raise which he believed to be insufficient.
Complainant indicated on appeal that he asked around regarding the raises.
Complainant found out that another employee did not receive a higher raise
because he was a witness in an EEO complaint. Complainants then discussed
the issue with other supervisors and found out the ages and raise amounts
for others.
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 �1614.105, �1614.106 and �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) 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 day limitation period is
triggered. See Howard v. Department of 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.
The record discloses that the alleged discriminatory event occurred on
January 8, 2005, but complainant did not initiate contact with an EEO
Counselor until April 9, 2005, which is beyond the forty-five (45) day
limitation period. On appeal, complainant has presented no persuasive
arguments or evidence warranting an extension of the time limit for
initiating EEO Counselor contact. Accordingly, the agency's final decision
dismissing complainant's complaint is affirmed.
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
March 14, 2006
__________________
Date