01990928
02-10-2000
Leonard P. Roos, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Leonard P. Roos v. United States Postal Service
01990928
February 10, 2000
Leonard P. Roos, )
Complainant, )
)
v. ) Appeal No. 01990928
) Agency No. 4-K-200-0027-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On November 13, 1998, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) dated October 21, 1998,
pertaining to his complaint of unlawful employment discrimination in
violation of 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.<1> In his complaint,
complainant alleged that he was subjected to discrimination on the bases
of age and physical disability when:
On August 7, 1996, complainant was issued a
Notice-of-Proposed-Removal-for-Unacceptable-Conduct; and
On August 30, 1996, complainant was issued a
Notice-of-Proposed-Removal-for-Unacceptable-Conduct, which was reduced
to a time-served suspension by step 2 resolution on April 29, 1997,
whereas on October 16, 1997, the Postmaster threatened employees and
was detailed out of the office.
The agency dismissed the complaint for untimely counselor contact.
Specifically, the agency found that complainant did not contact a
counselor until October 28, 1997, more than one year after the occurrence
of the incidents alleged.
On appeal, complainant argues that he was not aware that he was being
discriminated against until the Postmaster was not removed after engaging
in threatening conduct that was "much worse." Complainant explains
that he had nothing against which to compare his treatment until the
Postmaster was merely transferred for threatening the entire facility.
Complainant attached newspaper clippings detailing a picket of the
facility, in which the protesters claimed that management threatened to
take employees"out into the parking lot" to settle disputes, and that
the Postmaster threatened to fire everyone in the post office when
"tasteless remarks" appeared on the union bulletin board about his
eighteen-year-old daughter, who is suffering from leukemia.
In the formal complaint, dated June 24, 1998, complainant contended
that he was removed for a "lesser offence" than that committed by the
Postmaster. The record also contains a copy of the proposed removal
notices given to complainant. In the first notice, dated August 7,
1996, complainant was accused of giving a sick-leave request to the
Postmaster, and having told the Postmaster that he was taking leave
because he was scared he would kill the Postmaster, or "kick the shit
out of [the Postmaster]."
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.
The Commission finds that complainant should have been aware of the
alleged discrimination when he was issued the notices of proposed
removal for his "lesser" offense of threatening to kill someone occurred.
Complainant's delay of over one year between the incident and his first
contact with a counselor is not justified. See Baldwin County Welcome
Center v. Brown, 466 U.S. 147, 151 (1984) (per curiam) ("One who fails
to act diligently cannot invoke equitable principles to excuse lack of
diligence"); Rys v. U.S. Postal Service, 886 F.2d 443, 446 (1st Cir. 1989)
("to find succor in equity a Title VII plaintiff must have diligently
pursued her claim"). Accordingly, the agency's dismissal is 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
February 10, 2000
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.