01991575
10-21-1999
Joe T. Webb, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Joe T. Webb v. United States Postal Service
01991575
October 21, 1999
Joe T. Webb, )
Appellant, )
)
)
v. ) Appeal No. 01991575
) Agency No. 4-D-400-0024-98
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On December 19, 1998, appellant filed a timely appeal of a final agency
decision, which was dated November 23, 1998, dismissing one allegation
in his complaint, pursuant to 29 C.F.R. �1614.107(b), due to untimely
EEO Counselor contact.
In its final decision, the agency identified the allegations of
appellant's June 15, 1998 complaint, which was later clarified by his
affidavit dated September 29, 1998, as whether appellant was discriminated
against based on sex (male) and age (53) when: (1) on December 30,
1997, he was not selected for the Keene KY Postmaster position; and (2)
in February 1997, he submitted his PS Form 991 for an Officer-In-Charge
(OIC) placement, but he never received anything about his application
until late summer 1997, and in August 1997, he called an agency managerial
official and requested information about OIC placements but that official
did not give him any information concerning the matter. The agency
accepted allegation (1) for investigation and dismissed allegation (2)
due to untimely EEO Counselor contact. The agency stated that appellant's
EEO Counselor contact on January 5, 1998, with regard to allegation (2),
was beyond the 45-day time limit set by the regulations.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of
discrimination be brought to the attention of the EEO Counselor within
45 days of the alleged discriminatory event, or the effective date of
an alleged discriminatory personnel action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the limitation period
is triggered under the EEOC Regulations. See 29 C.F.R. �1614.105(a)(2);
Ball v. United States Postal Service, EEOC Request No. 05880247 (July 6,
1988). Thus, the limitations period is not triggered until a complainant
should reasonably suspect discrimination, but before all the facts that
would support a charge of discrimination have become apparent.
Allegation (2) involved the denial of appellant's requested OIC placement
in 1997. In his September 29, 1998 affidavit, appellant indicated
that in August 1997, he called the responsible official, and mentioned
management's lack of males being used in OIC placements versus females.
In the EEO Counselor's Report, the responsible official further indicated
that during the August 1997 telephone conversation, appellant did ask
her about information regarding the number of OIC assignments by sex and
age, which question she could not answer. After a review of the record,
we find that appellant had or reasonably should have had a suspicion of
discrimination concerning the matter in August 1997. Thus, appellant's
January 5, 1998 EEO Counselor contact with regard to allegation (2)
was beyond the 45-day time limit set by the regulations.
In addition, appellant also alleged that the denial of his requested OIC
placement caused his nonselection to the Postmaster position in December
1998. However, we note that in determining when the limitation period
is triggered, the focus is on the time of the alleged discriminatory
act, not the time when the consequences of the act become most painful.
Delaware State College v. Ricks, 449 U.S. 250, 258 (1980). Thus, we
find that appellant was aware or should have been aware of the alleged
discrimination in August 1997, as discussed above, and not when the
effects became the most painful, i.e., when he was not selected for the
Postmaster position in December 1998. Furthermore, we note that appellant
asserts on appeal that the agency had been discriminating against
employees since "Bible days," and after ten years, he was "fed up with
this system," and filed the present complaint. The Commission has held
that all complainants must act with due diligence in the pursuit of their
claims or the doctrine of laches may be applied. The doctrine of laches
is an equitable remedy under which an individual's failure to diligently
pursue their actions could bar their claim. See O'Dell v. Department of
Health and Human Services, EEOC Request No. 05901130 (December 27, 1990).
Thus, we find that appellant failed to present adequate justification
to warrant an extension of the applicable time limit for contacting
an EEO Counselor pursuant to 29 C.F.R. �1614.105(a)(2). Accordingly,
the agency's final decision is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
October 21, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations