Earl McDaniels Complainant,v.William J. Henderson, Postmaster General, United States Postal Service (S.E./S.W. Areas), Agency.

Equal Employment Opportunity CommissionMar 9, 2000
01a00198 (E.E.O.C. Mar. 9, 2000)

01a00198

03-09-2000

Earl McDaniels Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (S.E./S.W. Areas), Agency.


Earl McDaniels )

Complainant, )

)

v. ) Appeal No. 01A00198

) Agency No. 1H-381-0041-99

William J. Henderson, )

Postmaster General, )

United States Postal Service )

(S.E./S.W. Areas), )

Agency. )

____________________________________)

DECISION

The Commission finds that the agency's July 22, 1999 decision dismissing

the complaint on the grounds of untimely EEO counselor contact is proper

pursuant to 64 Fed. Reg. 37, 644, 37, 656 (1999)(to be codified and

hereinafter referred to as 29 C.F.R. � 1614.107(b)).

The record shows that complainant sought EEO counseling on April 17,

1999, alleging that he had been discriminated against on the bases of race

(Black), and mental disability (stress), when on September 20, 1998, his

supervisor changed his PS Form 3971 without his knowledge or consent.

The record also reveals that on April 17, 1999, complainant also agreed

to participate in an Alternate Dispute Resolution Process. By letter

dated April 30, 1999, however, the agency determined that the complaint

should not be mediated, and should be processed through the traditional

EEO process.

Complainant subsequently filed a formal complaint on June 28, 1999.

The agency issued a final decision dismissing the complaint on the grounds

of untimely EEO counselor contact. The agency noted that complainant

contacted an EEO counselor 150 days after the incident in question.

On appeal, complainant complains about the agency's processing of his

EEO complaint. The agency requests that we affirm the FAD.

64 Fed. Reg. 37, 644, 37656 (1999)(to be codified and hereinafter

referred to as 29 C.F.R. � 1614.105 (a) (1)) requires that complaints of

discrimination be brought to the attention of the EEO Counselor within

45 days of the alleged discriminatory event, or the effective date of

an alleged discriminatory personnel action. The Commission applies a

"reasonable suspicion" standard to the triggering date for determining

the timeliness of the contact with an EEO counselor. Cochran v. United

States Postal Service, EEOC Request No. 05920399 (June 18, 1992).

Under this standard, the time period for contacting an EEO counselor is

triggered when the complainant should reasonably suspect discrimination,

but before all the facts that would support a charge of discrimination

may have become apparent. Id.

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.

A review of the instant complaint shows that complainant does not claim

that he was unaware of his EEO rights or that he was unaware of EEO

applicable time limits. The record reveals complainant filed a union

grievance sometime in October 1998. The grievance was resolved at Step 2

on March 15, 1999. Complainant, however, did not contact an EEO Counselor

in the matter until April 1999. We also note that complainant's EEO

Counselor contact was late, despite his attempt to mediate his complaint.

Complainant failed to present any persuasive argument or evidence as

to why we should extend the time limits in this case. Accordingly,

the final agency decision is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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). 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

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:

March 9, 2000

Date

Carlton

M.

Hadden,

Acting

Director

Office of Federal Operations