01987001
10-15-1999
John R. Graham, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
John R. Graham, )
Appellant, )
)
v. )
) Appeal No. 01987001
William J. Henderson, ) Agency No. 1-G-758-0010-98
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On September 23, 1998, appellant filed a timely appeal with this
Commission from a final agency decision (FAD), dated August 24, 1998,
dismissing appellant's complaint for untimely counselor contact.
The Commission accepts the appellant's appeal in accordance with EEOC
Order No. 960, as amended.
On January 26, 1998, appellant contacted an EEO Counselor regarding
allegations of discrimination based on physical disability (osteoporosis).
Specifically, appellant alleged that he was not allowed to return to
work from July 21, 1997 through October 14, 1997, due to a pending
medical clearance. Informal efforts to resolve appellant's concerns
were unsuccessful. Accordingly, on April 10, 1998, appellant filed a
formal complaint.
The agency dismissed appellant's complaint for untimely EEO Counselor
contact. The FAD stated that appellant's initial contact was 104 days
after the alleged incident, and therefore was well beyond the forty-five
day time limitation.
With his appeal, appellant included a letter dated September 17, 1998.
Therein, appellant contends that he never realized that he could file
an EEO complaint until a co-worker told him that his osteoporosis could
be a basis. At that time he �realized [he] had a legitimate complaint�
and contacted the EEO office.
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 Ball v. USPS, EEOC Request
No. 05880247 (July 6, 1988). 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.
In the instant case, appellant does not contend that he was unaware of
the time limitation for contacting an EEO Counselor. Instead, he argues
that he did not realize he could pursue the EEO complaint process until
a co-worker informed him that osteoporosis could be a basis that merited
the filing of an EEO complaint. However, the Commission has held that the
time limit for contacting an Eeo Counselor shall not be extended �simply
on the grounds that appellant did not know that disability in general or
that [a disability in particular] was covered under the Rehabilitation
Act.� Moore v. Department of the Navy, EEOC Appeal No. 01952942 (March
28, 1996). Appellant has failed to present adequate justification
pursuant to 29 C.F.R. �1614.105(a)(2), for extending the limitation
period beyond forty-five days. Accordingly, the agency's decision to
dismiss appellant's complaint for failure to initiate contact with an
EEO Counselor in a timely fashion was proper and is 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. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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 15, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations