John L. Vellutini, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 9, 2009
0120081403 (E.E.O.C. Oct. 9, 2009)

0120081403

10-09-2009

John L. Vellutini, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


John L. Vellutini,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120081403

Agency No. 1F-941-0004-08

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated January 10, 2008, dismissing his 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.

Upon review, the Commission finds that complainant's complaint was

properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely

EEO Counselor contact.

In his complaint, complainant alleged that he was subjected to

discrimination on the basis of race (Caucasian) when (a) from March

26-July 29, 2007, he was verbally attacked and harassed by a co-worker;

(b) he received a letter of warning on March 26, 2007, in regard to

this matter; and (c) he received a notice of a 14-day suspension on

May 11, 2007. According to complainant, the last day of the alleged

discriminatory events was July 29, 2007. Complainant initiated contact

with an EEO counselor on October 14, 2007, which is beyond the forty-five

(45) day limitation period.

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 further 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. 29 C.F.R. � 1614.105(a)(2). Here, complainant has

adduced no evidence to show that the time limit should be extended.

We note that, on appeal, complainant has submitted what appears to be a

file-copy1 of a November 12, 2007 letter to the agency EEO Specialist to

whom his case was assigned for processing. In that letter, complainant

indicates that the harassment alleged in his complaint continued through

at least September 17, 2007, and possibly through September 24, 2007.

Complainant does not explain when or how he came to know of these later

matters. Assuming that the harassment extended through September 24,

2007, and further assuming that complainant mailed the letter on November

12, 2007, he would still be untimely with regard to the harassment

allegation, in that the lapse of time before he initiated contact was

49 days.

Based upon review of the record, and for the forgoing reasons, we find

that the agency correctly dismissed complainant's complaint. Accordingly,

the final agency decision is AFFIRMED.

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

October 9, 2009

Date

1 The copy of the letter provided is not signed by complainant.

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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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