Joseph P. Lukaszek, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 18, 1999
01992350 (E.E.O.C. Nov. 18, 1999)

01992350

11-18-1999

Joseph P. Lukaszek, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Joseph P. Lukaszek, )

Complainant, )

)

v. ) Appeal No. 01992350

) Agency No. 4-B-120-0011-99

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

The Commission finds that the agency's December 28, 1998 decision

dismissing Complainant's complaint on the basis that Complainant failed

to contact an EEO counselor in a timely manner is proper pursuant to

the provisions of 29 C.F.R. �1614.107(a)(2).

The record shows that on June 23, 1997, Complainant's supervisor provided

an evaluation/rating of Complainant's work performance. Complainant had

requested to be transferred to the Albany Post Office and said evaluation

was part of the pre-employment investigation. By letter dated June 27,

1997, Complainant's request for a transfer was denied. By letter dated

May 20, 1998, Complainant asked his supervisor to provide a written

reply to the June 23, 1997 evaluation. On May 27, 1998, Complainant's

supervisor informed him that �the reasoning for my evaluation was based

on my personal observations of your work performance ...�

On June 2, 1998, Complainant sought EEO counseling alleging that he had

been discriminated against on the basis of sex (male) when on May 29,

1998, he became aware that his supervisor would not change the June 23,

1997 evaluation. Subsequently Complainant filed a formal complaint

alleging that he had been discriminated against on the basis of sex

when on may 27, 1998, his �supervisor's supervisor rendered separate

and contradictory employee evaluations four years apart based on whistle

blowing safety retaliation resulting in a denial of a transfer to Albany

district�.

The agency issued a final decision dismissing the complaint on the grounds

of untimely EEO counselor contact. The agency found that Complainant

had reasonable suspicion of discrimination on June 27, 1997, when he

was denied the transfer.

The Commission applies a "reasonable suspicion" standard to the

triggering date for determining the timeliness of the contact with an

EEO counselor. Cochran v. United States Postal Service, EEOC Request

No. 05920399 (June 18, 1992). Under this standard, the time period

for contacting an EEO counselor is triggered when the complainant

should reasonably suspect discrimination, but before all the facts that

would support a charge of discrimination may have become apparent. Id.;

Paredes v. Nagle, 27 FEP Cases 1345 (D.D.C. 1982). The record shows that

on June 23, 1997, Complainant was evaluated and that on June 27, 1997,

he was denied a transfer to the Albany district. Eleven months after

these incidents, by letter dated May 20, 1998, Complainantrequested his

supervisor to provide a written reply to the June 23, 1997 evaluation.

Based on these circumstances we find that Complainant should have

reasonably suspected discrimination on June 27, 1997, when he was

denied the transfer in question. Accordingly, he should have sought EEO

counseling within 45 days of said denial. The fact that on May 20, 1998,

Complainant asked his supervisor to reply or explain the June 23, 1997

evaluation does not toll the 45-day time limit for initial EEO counselor

contact because the Commission has specifically held that internal efforts

or appeals of an agency's adverse action and/or the filing of a grievance

do not toll the running of the time limit to contact an EEO counselor.

See Hosford v. Department of Veterans Affairs, EEOC Request No. 05890038

(June 9, 1989). Accordingly, the agency's final decision was proper

and is hereby AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �1614.405). All requests and arguments must 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

timely filed if it is received by mail within five days of the expiration

of the applicable filing period. See 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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).

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 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:

November 18, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_________________________