01a60917
04-11-2006
Jefferey L. Whitaker, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jefferey L. Whitaker v. United States Postal Service
01A60917
April 11, 2006
.
Jefferey L. Whitaker,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A60917
Agency No. 4C-270-0098-05
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated October 14, 2005, dismissing his formal EEO
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.
On July 14, 2005, complainant initiated contact with the EEO office.
Informal efforts to resolve complainant's concerns were unsuccessful.
On September 15 ,2005, complainant filed a formal complaint. Therein,
complainant claimed that he was the victim of unlawful employment
discrimination on the basis of race (African-American) when:
on July 12, 2005, he became aware that on April 3, 2003, the Postmaster
requested a hiring register worksheet in order to fill three city carrier
positions instead of reassigning him to the Asheboro Post Office as per
his April 4, 2003 request.
In its October 14, 2005 final decision, the agency dismissed the
instant complaint on the grounds of untimely EEO Counselor contact,
pursuant to 29 C.F.R. � 1614.107(a)(2). The agency determined that
complainant's initial EEO Counselor contact occurred on July 14, 2005,
which it found to be beyond the 45-day limitation period. The agency
further determined that complainant had or should have had reasonable
suspicion of unlawful employment discrimination prior to July 12, 2005.
Specifically, the agency stated that in his PS Form 2564-A dated July
15, 2003 for a prior complaint (Agency No. 4C-270-0153-03), complainant
stated that in March 2003, the Postmaster "communicated to me through
[his cousin, a Window Clerk at Asheboro] that I needed to contact him and
put in my transfer papers to become a carrier in Asheboro as a full time
position would shortly be available. The following Friday I delivered my
letter of transfer to [Postmaster]. Then shortly afterwards [Postmaster]
sent another message that the district would not allow him to transfer
anyone into Asheboro, but had to hire from the rooster."
The agency further determined that complainant was fully aware of the
EEO time limits because he previously participated in the EEO process;
and that EEO posters outlining the 45-day limitation period were on
display during the relevant period.
The record contains a copy of the Postmaster's e-mail correspondence
dated April 3, 2003 to the EEO Counselor that which complainant made
a reference to in his PS Form 2564-A dated July 15, 2003 for a prior
complaint (Agency No. 4C-270-0153-03). Therein, the Postmaster stated
that because the Asheboro Office "has exhausted transfer request that are
current and outside the District. Therefore, I have requested a hiring
worksheet for three (3) City Carriers from [named Agency Official]."
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 Commission finds that the alleged discriminatory event occurred prior
to July 12, 2003, but that complainant did not initiate contact with an
EEO Counselor until July 14, 2005, which was beyond the forty-five (45)
day limitation period.
The Commission has found that because 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 complaint can result in untimely Counselor contact.
See Bracken vs. United States Postal Service, EEOC Request No. 0590065
(March 29, 1990). The Commission finds that complainant had, or should
have had, a reasonable suspicion of unlawful employment discrimination
at the time of the alleged discriminatory event, and that he should
have contacted the EEO office within forty-five days. Complainant has
failed to provide sufficient justification for extending or tolling the
time limitation. Therefore, we find that the agency properly dismissed
the instant complaint for untimely EEO Counselor contact.
Moreover, the Commission has consistently held that a complainant must
act with due diligence in the pursuit of his claim or the doctrine of
laches may apply. See O'Dell v. Department of Health and Human Services,
EEOC Request No. 05901130 (December 27, 1990). The doctrine of laches
is an equitable remedy under which an individual's failure to pursue
diligently his course of action could bar his claim. Complainant waited
over approximately two years from the date of the alleged discriminatory
event before he finally contacted an EEO Counselor.
Accordingly, the agency's final decision dismissing the instant
complaint on the grounds of untimely EEO Counselor contact was proper
and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 11, 2006
__________________
Date