01992093
11-29-2000
Lawrence L. Ellis, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Lawrence L. Ellis v. United States Postal Service
01992093
November 29, 2000
.
Lawrence L. Ellis,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01992093
Agency No. 1-G-772-0088-98
DECISION
Complainant filed an appeal with this Commission from an agency decision
pertaining to 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.<1> The Commission accepts the appeal
in accordance with 29 C.F.R. � 1614.405.
On June 22, 1998, complainant contacted the EEO office regarding claims
of discrimination based on race and color. Informal efforts to resolve
complainant's concerns were unsuccessful. Subsequently, on September 4,
1998, complainant filed a formal complaint. The agency framed the claim
as follows:
On April 2, 1998, complainant's supervisor spoke in a loud voice and
made negative comments regarding his character.
On December 2, 1998, the agency issued a decision dismissing the complaint
on the grounds of untimely EEO Counselor contact. Specifically, the
agency determined that complainant contacted the EEO office on June 22,
1998, regarding an incident that occurred approximately 81 days earlier,
on April 2, 1998.
On appeal, complainant contends that on April 9, 1998, he attended
a meeting with his manager, another supervisor and a union steward
regarding the April 2, 1998 incident; that complainant indicated that
he could file an EEO complaint, which his manager acknowledged; and
that his manager stated that he first wanted to know what complainant
wanted out of the meeting. Complainant contends that he was assured that
higher level officials would speak with complainant's supervisor about
the incident once the supervisor returned from school; that following
the meeting, complainant asked the manager on a couple of occasions if
any progress had been made; and that the manager explained that as soon
as the supervisor returned he would get everyone together and inform
complainant of the outcome. Complainant contends that, even after
writing to the manager, he never received a response. In summary,
complainant argues that the manager misinformed him as a means to keep
him from filing an EEO complaint.
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.
Here, complainant contacted the EEO Counselor on June 22, 1998, regarding
an allegedly discriminatory event that occurred on April 9, 1998,
beyond the forty-five day time limitation. Complainant argues that
he tried to resolve the matter through his manager before contacting
the EEO office. The Commission has consistently held that utilization
of internal agency procedures, union grievances, and other remedial
processes does not toll the time limit for contacting an EEO Counselor.
See Kramer v. U.S. Postal Service, EEOC Appeal No. 01954021 (October
5, 1995); Williams v. U.S. Postal Service, EEOC Request No. 05910291
(April 25, 1991). Moreover, based on a review of the record, it does not
appear that complainant was unaware of the time limitation. Therefore,
we find that complainant failed to provide sufficient justification for
extending the time limit for contacting an EEO Counselor.
Accordingly, the agency's decision to dismiss the complaint was proper
and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 29, 2000
__________________
Date
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.