01995205
05-03-2000
Dwight A. Simonton, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Dwight A. Simonton, )
Complainant, )
)
v. ) Appeal No. 01995205
) Agency No. 4-I-530-0082-99
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
The Commission finds that the agency's decision dated May 7, 1999,
dismissing complainant's complaint due to untimely EEO contact is
proper pursuant to the regulation set forth at 64 Fed. Reg. 37,644,
37,656 (1999) (to be codified and hereinafter referred to as 29 C.F.R. �
1614.107(a)(2)).<1> In his complaint, complainant alleged that he was
not provided with reasonable accommodation, and the agency falsified
his retirement application which deprived him of health insurance upon
retirement. The agency stated in its decision that the alleged incidents
occurred on September 17, 1997 and October 29, 1998, when complainant
was denied reasonable accommodation and when he was notified that his
health benefit was terminated, respectively. Complainant contacted an
EEO Counselor with regard to the matters on February 17, 1999, which was
beyond the 45-day time limit. Complainant contends that in February
1999, he learned that a female rural carrier was granted reasonable
accommodation, and he learned from the Office of Personnel Management
about the alleged falsification of his retirement papers.
The Commission has adopted a �reasonable suspicion� standard (as opposed
to a �supportive facts� standard) to determine when the limitation period
is triggered under the EEOC Regulations. See 29 C.F.R. � 1614.105(a)(2);
Ball v. United States Postal Service, EEOC Request No. 05880247 (July 6,
1988). Thus, the limitations period is not triggered until a complainant
should reasonably suspect discrimination, but before all the facts
that would support a charge of discrimination have become apparent.
After a review of the record, we find that complainant had or should
have had a reasonable suspicion of discrimination concerning the alleged
matters at the time when the alleged discriminatory incidents occurred or
during the relevant time period. The record indicates that complainant
previously sought EEO counseling regarding the denial of reasonable
accommodation in June 1998, however, he did not file a formal complaint
at that time. In addition, complainant filed an appeal to the Merit
Systems Protection Board in July 1998, alleging that he was subjected to
discrimination when he was improperly denied accommodation. Further, the
record contains a letter dated October 29, 1998, from complainant to an
Accounting Service Center employee noting that his health benefits were
terminated, indicating that this termination was purportedly erroneous,
and asking for assistance in correcting the alleged error. Clearly,
complainant should have suspected the alleged discrimination more than
45 days prior to his February 1999 EEO contact.
Accordingly, the agency's decision 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:
May 3, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date 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.