01A12084_r
04-30-2001
Hilberto Rodriguez, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Hilberto Rodriguez v. United States Postal Service
01A12084
April 30, 2001
.
Hilberto Rodriguez,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A12084
Agency No. 1F-921-0006-01
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision pertaining to his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. The Commission accepts the appeal
in accordance with 29 C.F.R. � 1614.405.
On October 12, 2000, complainant contacted the EEO office claiming that
he was discriminated against when on August 24, 2000, he was issued
a Letter of Warning (LOW) charging him with committing an unsafe act.
Informal efforts to resolve complainant's concerns were unsuccessful.
Subsequently, complainant filed a formal complaint.
The agency issued a decision, on January 9, 2001, dismissing the complaint
for untimely EEO Counselor contact. Specifically, the agency determined
that complainant sought counseling four days after the expiration of
the forty-five-day time limitation.
On appeal, complainant acknowledges that his initial EEO contact was
untimely, but contends that the delay was caused by his earlier contact
with the union. According to complainant, after he received the LOW he
�went to the mailhandler's union for advice;� a union steward told him
he would look into the matter and get back to him; and when complainant
spoke with the steward later, he was told that the �best option would
be to file an EEO complaint.�
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.
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 record shows that complainant waited until October 12, 2000 to contact
the EEO office about an LOW issued on August 24, 2000. Therefore, we find
that complainant's contact was beyond the forty-five-day time limitation
and untimely. On appeal, complainant argues that he first tried to
address the problem through the union, and was then advised to utilize
the EEO process. The Commission has consistently held that utilization of
internal agency procedures, union grievances, and other remedial processes
does not toll the time limit for contacting an EEO Counselor. See
Kramer v. U.S. Postal Service, EEOC Appeal No. 01954021(October 5,
1995); Williams v. U.S. Postal Service, EEOC Request No. 05910291(April
25, 1991). Consequently, we find that complainant has failed to provide
sufficient justification for waiving or tolling the time limitation.
Accordingly, the agency's decision to dismiss the complaint was proper
and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
April 30, 2001
__________________
Date