Leonard P. Roos, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 10, 2000
01990928 (E.E.O.C. Feb. 10, 2000)

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.