Larry B. Elias, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 4, 2000
01985120 (E.E.O.C. May. 4, 2000)

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.