Jesse Boykin, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionDec 17, 2009
0120093655 (E.E.O.C. Dec. 17, 2009)

0120093655

12-17-2009

Jesse Boykin, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Jesse Boykin,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120093655

Agency No. 4F-940-0084-09

DECISION

Complainant filed a timely appeal with this Commission from the final

agency decision dated June 25, 2009, dismissing his formal 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. and the Age Discrimination in Employment Act of 1967 (ADEA),

as amended, 29 U.S.C. � 621 et seq.

On April 8, 2009, complainant initiated EEO Counselor contact.

Informal efforts to resolve his concerns were unsuccessful.

On May 26, 2009, complainant filed the instant formal complaint. Therein,

complainant claimed that he was subjected to discrimination on the bases

of race, color, age and in reprisal for prior EEO activity when1:

1. he was issued a Letter of Decision-Reduction in Grade and/or Pay

dated August 19, 2005 (effective September 3, 2005);

2. he was issued a Letter of Decision-Reduction in Grade dated March 24,

2006 (effective April 1, 2006); and

3. on October 27, 2005, March 3, 2006 and December 7, 2008, he was issued

Letters of Demand.

In its June 25, 2009 final decision, the agency dismissed complainant's

complaint pursuant to 29 C.F.R. � 1614.107(a)(2), on the grounds of

untimely EEO Counselor contact. The agency determined that complainant's

initial EEO Counselor contact occurred on April 8, 2009, which it found to

be beyond the 45-day limitation period. The agency also dismissed claim

1 on the alternative grounds of stating the same claim that is pending

before or has been decided by the agency or Commission, pursuant to 29

C.F.R. � 1614.107(a)(1). The agency dismissed claim 2 on the alternative

grounds for raising the same matter in an appeal with the Merit Systems

Protection Board (MSPB) pursuant to 29 C.F.R. � 1614.107(a)(4).

On appeal, complainant, through his representative, argues that his April

8, 2009 EEO contact was timely. Complainant specifically argues that it

was not until March 26, 2009 when he became aware that a white supervisor

was not held responsible for shortages. Specifically, complainant states

that he was downgraded for shortage while the white supervisor was not.

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.

In the instant case, the Commission determines that the agency properly

dismissed the instant complaint on the grounds of untimely EEO Counselor

contact. We find that complainant, a former supervisor, had, or should

have had a reasonable suspicion of discrimination more than forty-five

days before his initial April 8, 2009 EEO 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 Becker v. United States Postal Serv., EEOC

Appeal No. 01A45028 (November 18, 2004) (finding that the doctrine of

laches applied when complainant waited over two years from the date of

the alleged discriminatory events before contacting an EEO Counselor);

O'Dell v. Department of Health and Human Serv., 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 three years

from the date of the alleged discriminatory event before he contacted

an EEO Counselor contact on April 8, 2009. Complainant has not provided

sufficient justification for extending or tolling this time limit.

Accordingly, the agency's final decision dismissing complainant's

complaint is AFFIRMED.2

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 77960,

Washington, DC 20013. 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 (S0408)

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 (Z1008)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with

the Court 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

December 17, 2009

__________________

Date

1 For ease of reference, the Commission has numbered complainant's claims

as claims 1 - 3.

2 Because we affirm the agency's dismissal of claims 1 - 2 for the reason

stated herein, we find it unnecessary to address alternative procedural

grounds.

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0120093655

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0120093655