01985120
05-04-2000
Larry B. Elias, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Larry B. Elias v. United States Postal Service
01985120
May 4, 2000
Larry B. Elias, )
Complainant, )
)
v. ) Appeal No. 01985120
) Agency No. 1K-204-0057-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
Based on a review of the record, we find that the agency properly
dismissed complainant's complaint for untimely EEO Counselor contact. See
64 Fed. Reg. 37,656 (1999)(hereinafter referred to and to be codified
as 29 C.F.R. � 1614.107(a)(2)). <1> Complainant alleged that he was
subjected to discrimination on the bases of sex and disability when,
on August 19, 1997, a coworker informed him that her Rehabilitation Job
Offer ("RJO") had not changed her tour of duty or days off.
Complainant initiated EEO counseling on September 9, 1997, in connection
with an RJO he received from the agency in 1996. Complainant contends
that in September 1996, he received an RJO, which changed his pay
location, salary, tour of duty, and days off, which he asserted were
Saturday and Sunday. Complainant avers that, on October 2, 1996, he
reported for duty, with his RJO, to the Senior Manager of BMC ("SMR");
that SMR "made pen and ink changes to my scheduled tour of duty from 3:30
p.m.- 7:30 p.m. to 5:00 to 9:00 p.m."; and that SMR ordered him to return
to work at 5:00 p.m. Complainant also asserts that SMR informed him that
complainant's weekend off days would not be restored. Complainant states
that he subsequently filed a union grievance but was told, in November
1996, that no grievances would be entertained until the beginning of
the following year.
EEOC Regulations require a complainant to initiate EEO counseling within
45 days of the alleged discriminatory event, or alleged discriminatory
personnel action. See 64 Fed. Reg. 37,656 (1999) (hereinafter referred to
and to be codified as 29 C.F.R. � 1614.105(a)(1)). Time limitations shall
be extended when a complainant makes an adequate showing of justification
for an extension. See 64 Fed. Reg. 37,656(1999)(hereinafter referred
to and to be codified as 29 C.F.R. � 1614.105(a)(2)). In addition, time
limitations are subject to waiver, estoppel, and equitable tolling. See 64
Fed. Reg. 37,661(1999)(hereinafter referred to and to be codified as 29
C.F.R. � 1614.604(c)). However, the use of other appeals processes will
not toll the applicable limitations period. See Randall v. Department
of Veterans Affairs, EEOC Request No. 05980606 (January 20, 1999)
(citations omitted).
The Commission has applied a "reasonable suspicion" standard to the
triggering date for determining the timeliness of the contact with an
EEO Counselor. See 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.
The Commission determines that a reasonable person in complainant's
circumstances would have suspected discrimination based on disability
as early as October 2, 1996, when complainant reported for work and SMR
changed his tour of duty and denied complainant's request to reinstate
his weekend days off. The Commission further determines that complainant
subsequently filed a union grievance as a result of the change in his
days off, although he was purportedly told, in November 1996, that the
grievance would not be entertained until the beginning of the following
year. The fact that complainant may have subsequently spoken with other
employees, which conversations caused him "to further investigate the
situation" and initiate EEO counseling, does not make his September 9,
1997 EEO contact timely, but, instead, merely served to reinforce his
initial belief that he was being discriminated against.
The FAD is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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 (Z1199)
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:
May 4, 2000 ____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.