01995094
09-22-2000
Franklin E. Banks, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Franklin E. Banks v. United States Postal Service
01995094
09-22-00
.
Franklin E. Banks,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01995094
Agency No. 4G-752-0078-99
DECISION
INTRODUCTION
Complainant filed an appeal with this Commission from a final agency
decision concerning his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq., and the Equal Pay Act of 1963, 29 U.S.C. �
206(d).<1> The final agency decision was dated May 26, 1999, and received
by complainant on May 29, 1999. The appeal was postmarked on June 9,
1999. Accordingly, the appeal is timely (see 29 C.F.R. � 1614.402(a)),
and is accepted in accordance with 29 C.F.R. � 1614.405.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed complainant's
complaint for untimely contact with an EEO Counselor.
BACKGROUND
Complainant filed a formal complaint on January 22, 1999, alleging
discrimination on the bases of sex (male) and retaliation (job as an
EEO Counselor/Investigator) when, on November 17, 1998, he became aware
that he was not given an incentive award equivalent to that received
by a female EEO Investigator who he worked with on an investigation.
Complainant claimed that their duties and responsibilities during the
course of a sexual harassment investigation had been equally shared.
The female investigator (F-1) received her award in the summer of 1996.
Complainant received no award for his work at that time.
In its final agency decision (FAD), the agency dismissed the complaint
for untimely contact with an EEO Counselor. It found that complainant
had waited over two years from the time he found out that F-1 received
an award until he first contacted an EEO Counselor about his allegations.
It stated that a management official claimed to have made the complainant
aware in the summer of 1996 that F-1 had received the award for her work
on the investigation.
This appeal followed. In his appeal, complainant claimed that it wasn't
until September 1998, when he was investigating a separate EEO claim,
that he discovered that F-1 had received the award solely for her work
on a sexual harassment investigation that was conducted by the agency
in 1995. Complainant originally thought that F-1 had received it for
additional reasons as well. Upon discovering this, he contacted the
manager for whom they had worked at the time and inquired as to why
he had not been recognized. Complainant claimed that the manager was
going to correct the situation and complainant subsequently received
an award for his work on the investigation. This award was not the
monetary equivalent of what F-1 received, which led complainant to file
the instant complaint. He claimed that the date of the discriminatory
event should be when he received an unequal award in November 1998.
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.
In the instant case, we find that complainant should have had reasonable
suspicion that he was being treated unfairly in the summer of 1996 when
he found out that F-1 had received an award in connection with her work
on the sexual harassment investigation and he received nothing. At this
point in time he was on notice that there was a substantial difference
in how he and F-1 were being treated by the agency. By waiting until
September of 1998 when he discovered proof that she had received the award
solely for her work on the investigation, and for no other duties that she
had performed, complainant became untimely in his EEO Counselor contact.
His belated receipt of an award that was not equivalent to F-1's does
not change the fact that he knew she had received an award as early as
the summer of 1996, at the same time that he had not been recognized
for his work on the investigation.
CONCLUSION
Accordingly, the decision of the agency was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0800)
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).
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.
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION-EQUAL PAY ACT (Y0400)
You are authorized under section 16(b) of the Fair Labor Standards Act
(29 U.S.C. � 216(b)) to file a civil action in a court of competent
jurisdiction WITHIN TWO YEARS or, if the violation is willful, THREE YEARS
of the date of the alleged violation of the Equal Pay Act regardless of
whether you have pursued any administrative complaint processing. The
filing of the 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
__09-22-00________________
Date
1 On 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.