Edgar H. Smyth, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 17, 1999
01990255_r (E.E.O.C. Sep. 17, 1999)

01990255_r

09-17-1999

Edgar H. Smyth, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Edgar H. Smyth, )

Appellant, )

)

v. ) Appeal No. 01990255

) Agency No. 4-E-890-0058-98

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

______________________________)

DECISION

On October 12, 1998, appellant filed a timely appeal with this Commission

from a final agency decision (FAD) received by him on September 15,

1998, pertaining to 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. In his complaint, appellant alleged

that he was subjected to discrimination on the basis of age when appellant

was not reinstated with the agency in February 1996.

The agency dismissed appellant's complaint pursuant to EEOC Regulation

29 C.F.R. �1614.107(b), for untimely counselor contact. Specifically,

the agency found that appellant failed to contact a counselor until March

20, 1998, and that appellant's pending action in other forums does not

waive or toll EEO time limitations.

On appeal, appellant argues that he did not realize he was being

discriminated against based on age until he received a list of thirty-one

(31) people, most under the age of forty (40), who were hired after

appellant's application for reinstatement was denied (hereinafter �list�).

The record includes a copy of appellant's appeal of this allegation

to the Merit System Protections Board (MSPB). By letter to the MSPB

dated December 20, 1996, appellant claims that he discovered he was

not reinstated because of his age when on August 11, 1996, he received

the list. In its initial decision, dated March 20, 1997, the MSPB granted

appellant's request to withdraw his appeal. In a letter to the MSPB dated

April 24, 1997, appellant asked that the MSPB reconsider its decision.

In an order dated December 18, 1997, the MSPB denied appellant's request.

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 Ball v. United

States Postal Service, EEOC Request No. 05880247 (July 6, 1988). Thus,

the limitations period 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 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.

The Commission finds that appellant filed a mixed case appeal with the

MSPB on November 26, 1996, which he later withdrew. Appellant then

initially contacted an EEO Counselor on March 20, 1998. Therefore, even

if appellant did not have a reasonable suspicion of discrimination until

he received the list on August 11, 1996, his initial counselor contact

was not made until over a year later. Further, appellant's use of another

process, i.e., an appeal to the MSPB, does not justify an extension of the

time limitation. The Commission has held that the use of the grievance

process or other internal appeal process does not toll the time limit for

contacting an EEO Counselor. See Speed v. USPS, EEOC Request No. 05921093

(June 24, 1993). Accordingly, the agency's decision is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. In the alternative, you may file a

civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. Filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1092)

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:

Sept. 17, 1999

__________________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations