01a01468
05-10-2000
Jasper Jones, Jr., Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Jasper Jones, Jr., )
Complainant, )
)
v. )
) Appeal No. 01A01468
William J. Henderson, ) Agency No. 4B-060-0137-99
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On December 4, 1999, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) pertaining to 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.<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 April 22, 1999, complainant contacted the EEO office claiming he was
discriminated against when, between September 11 through 24, 1998, a
Confederate flag decal was placed on his carrier case. Informal efforts
to resolve complainant's concerns were unsuccessful. Subsequently, on
October 19, 1999, complainant filed a formal complaint based on race,
color and sex.
The agency issued a FAD on November 5, 1999, dismissing the complaint
for untimely counselor contact and for failure to state a claim.
Specifically, the agency determined that although the alleged incident
occurred in September 1998<2>, complainant did not contact the EEO
Counselor until April 1999. The agency further determined that, assuming
complainant's contact was timely, complainant did not show how he was
aggrieved by the alleged action, and therefore failed to state a claim.
On appeal, complainant admits that his counselor contact was untimely.
He argues, however, that the time limitation should be tolled or waived.
Complainant contends that he was under stress; was waiting for the
Postal Inspector investigation report; and �realized [the] only option
left was to file an EEO complaint.�
In response, the agency reiterates its contention that complainant waited
seven months to contact the EEO office. Moreover, the agency cites letters
complainant submitted on appeal, to his Congressman, the NAACP, and his
union, as evidence that complainant reasonably suspected discrimination
prior to the April 1999 contact. According to the agency, complainant
had previously sought EEO counseling and therefore should be aware of
the time frames.
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 she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she 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 shows that complainant waited approximately seven months,
well beyond the forty-five day time limitation, before contacting the
EEO counselor. The record reflects, however, that complainant suspected
discrimination at the time of the incident. In a letter dated September
27, 1998, complainant wrote to various organizations in an effort to
bring attention to the matter. 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 contention that she was still waiting for the Postal
Inspector investigative report. 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.
Because of our disposition we do not consider whether the complaint was
properly dismissed for failure to state a claim.
Accordingly, after a careful review of the record, including arguments
and evidence not specifically addressed in this decision, we AFFIRM the
agency's decision.
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 10, 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 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.
2Although the formal complaint refers to September 1999 as the date of
the alleged incident, the FAD determined and complainant admits on appeal,
the event occurred in September 1998.