0120091711
06-05-2009
Jose N. Duarte, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jose N. Duarte,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091711
Agency No. 4H330001909
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated February 10, 2009, 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.
Complainant, a former Custodian employed at the Miami, Florida Post
Office, was removed from agency employment in June 2007 on the charges
of unacceptable conduct, including providing false information on his
application for employment concerning his criminal record, and for
continuing to incur arrests and convictions after his employment with
the agency. The letter of removal asserted that complainant had been
convicted of 12 different criminal charges between 1996 and 2006 while
employed by the agency. Complainant subsequently grieved his removal,
and the removal was upheld by an arbitrator on February 28, 2008.
In an EEO complaint filed on January 24, 2009, complainant alleged that
he was subjected to discrimination on the basis of reprisal for prior
protected EEO activity when he learned that some of the information used
to remove him in June 2007 was from a Merit Systems Protection Board
case he had filed in 2003. In its final decision, the agency dismissed
the complaint, pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO
Counselor contact. The instant appeal followed.
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.
The record discloses that complainant's removal was effective in June
2007, but complainant did not initiate contact with an EEO Counselor until
October 21, 2008, which is well beyond the forty-five (45) day limitation
period. The agency has presented adequate evidence that complainant knew
or should have known of the limitation period for seeking EEO counseling
in the form of an affidavit attesting to the fact that EEO counseling
posters containing the relevant deadlines were prominently posted in
complainant's work place. Complainant has provided no explanation
for when and how he came to suspect discrimination in this matter.
We note, however, that he did timely challenge his removal through the
negotiated grievance process at the time of his removal, but does not
explain why he did not seek EEO counseling at the same time. However,
to the extent that complainant waited until the arbitration process had
ended to seek EEO counseling, the Commission has consistently held that
the utilization of agency procedures, union grievances, and other remedial
processes does not toll the time limit for contacting an EEO Counselor.
See Ellis v. United States Postal Service, EEOC Appeal No. 01992093
(November 29, 2000).
Accordingly, the agency's final decision dismissing complainant's
complaint is affirmed.1
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
June 5, 2009
__________________
Date
1 Because the Commission finds that complainant untimely contacted the
EEO counselor, we need not determine whether the matter states a claim.
??
??
??
??
2
0120091711
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120091711