01990397
11-30-1999
Larry Martinez, Complainant , William J. Henderson, Postmaster General, United States Postal Service, Agency.
Larry Martinez v. United States Postal Service
01990397
November 30, 1999
Larry Martinez, )
Complainant , )
)
) Appeal No. 01990397
) Agency No. 1-E-801-0074-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
____________________________________)
DECISION
On October 1, 1998, the agency issued a final decision (FAD) dismissing
complainant's formal complaint of employment discrimination. Complainant
appealed the agency's FAD on October 13, 1998. Accordingly, the appeal
is timely, and is accepted in accordance with EEOC Order No. 960, as
amended.<1>
On July 8, 1998, complainant filed a formal complaint, alleging that he
was subjected to discrimination on the bases of race (Hispanic/Native
American), religion (Catholic), sex (male), age (date of birth June 12,
1948), and physical disability (hearing impaired) in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.,
the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. �621 et seq., and Section 501 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. �791 et seq. In the complaint, complainant stated
that "around" 1993 to 1995, he began a program for hearing impaired
agency employees, and served in a position he describes as "handicap
coordinator." Complainant stated that he assisted a co-worker who was
earning a degree as a certified interpreter for the hearing impaired,
in contacting other interpreters to accommodate employees on all agency
tours at agency facilities. Complainant alleged that when this project
commenced, it was with the understanding that the co-worker would only
provide services as an interpreter. According to complainant, the
co-worker decided to take over the handicap coordinator position, and
"for the past 2 � years . . . is slowly pushing me out of the program
that I began for the hearing impaired." Complainant also identified
the date of the alleged discriminatory incidents as "1995 to present."
In its FAD, the agency identified complainant's claims as � "[complainant
was] denied the position of handicap coordinator since 1995." As defined,
the agency dismissed the complaint for untimely counselor contact.
Specifically, the agency found that complainant learned in 1995, that
the co-worker was being used in the handicap coordinator position instead
of him. This knowledge, according to the agency, should have triggered
a reasonable suspicion of discrimination. Therefore, the agency found
that complainant's initial counselor contact, on April 23, 1998, was
untimely.
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.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
Complainant alleged that for 2 � years, he was "slowly pushed" out
of the handicap coordinator position by a co-worker who assisted him
in providing services for hearing impaired employees. The record in
this case, however, does not include evidence of which event prompted
complainant to pursue the EEO process, nor the precise date of the alleged
discriminatory act. Given the present record, the Commission is unable
to determine precisely when the alleged discriminatory act occurred,
or when complainant acquired a reasonable suspicion of discrimination.
Accordingly, the agency's FAD is VACATED, and the complaint is REMANDED
for further processing as provided below.
ORDER
The agency is ORDERED to perform the following:
Contact complainant and request that he provide the exact dates that the
alleged discriminatory incidents occurred, the dates on which he became
aware of their occurrence, and/or the date(s) he first suspected the
alleged discrimination. The agency shall supplement the record with
all other relevant evidence regarding the timeliness of complainant's
EEO contact. The supplemental investigation shall be completed within
forty-five (45) calendar days of the date this decision becomes final.
Within sixty (60) calendar days of the date this decision becomes final,
the agency shall issue a final decision determining whether complainant
timely contacted an EEO counselor, or a notice of processing accepting
the complaint.
A copy of the agency's final agency decision or notice of processing
must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. �1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. ��1614.407, 1614.408) and 29 C.F.R. �1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. ��1614.407 and 1614.408. A
civil action for enforcement or a civil action on the underlying complaint
is subject to the deadline stated in 42 U.S.C. �2000e-16(c)(Supp. V 1993).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.409).
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 (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. 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:
November 30, 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:
_______________ __________________________
Date Equal Employment Assistant
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.