01A01621
05-24-2000
James R. Hamrick, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
James R. Hamrick v. United States Postal Service
01A01621
May 24, 2000
James R. Hamrick, )
Complainant, )
)
v. )
) Appeal No. 01A01621
William J. Henderson, ) Agency No. 4F-920-0336-99
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On November 1, 1999, complainant filed an appeal with this Commission from
an agency's decision 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. and Section 501 of
the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1>
The Commission accepts the appeal in accordance with 64 Fed. Reg. 37,644,
37,659 (1999)(to be codified at 29 C.F.R. �1614.405).
On July 9, 1999, complainant contacted the EEO office regarding claims
of discrimination. Informal efforts to resolve complainant's concerns
were unsuccessful. Subsequently, on September 4, 1999, complainant filed
a formal complaint based on age and mental disability. The agency framed
the complaint as follows:
On June 25, 1999, complainant was advised by his Union Representative
regarding the results of his investigation of the agency's position
about refunding with interest complainant's military deposit.
The agency issued a decision dismissing the complaint for untimely
counselor contact. Specifically, the agency determined that complainant
contacted an agency official on December 19, 1998 and wrote to his
congresswoman on December 14, 1998 regarding his military deposit.
However, complainant waited until July 1999 to contacted the EEO office.
The agency concluded that complainant's suspicions were raised months
earlier, and noted that EEO posters stating the time limitations were
on display.
Volume 64 Fed. Reg. 37,644, 37656 (1999) (to be codified and hereinafter
referred to as 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 her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
Here, the record reflects that complainant suspected discrimination
months before he contacted the EEO office on July 9, 1999. On December
14, 1998, complainant wrote to his congresswoman seeking "assistance
in retrieving my $8,529.61 and the interest I have lost on it since
9/8/98 . . . ." 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). Moreover, we are unpersuaded by complainant's arguments on
appeal that "the FAD ... is premature and prevents [him] from obtaining
relevant information to prove a prima facie case of discrimination based
on his age and disability." The Commission has found that, since the
limitation period for contacting an EEO Counselor is triggered by the
reasonable suspicion standard, waiting until one has "supporting facts"
or "proof" of discrimination before initiating a complain can result
in untimely Counselor contact. See Bracken v. U.S. Postal Service,
EEOC Request No. 05900065 (March 29, 1990). Therefore, we find that
complainant has not presented sufficient justification for extending
the time limitation.
Accordingly, the agency's dismissal of the complaint for untimely
counselor contact was proper and is hereby 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 24, 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 Equal
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.