Mark E. Coates, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJul 18, 2002
01A22496 (E.E.O.C. Jul. 18, 2002)

01A22496

07-18-2002

Mark E. Coates, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Mark E. Coates v. United States Postal Service

01A22496

July 18, 2002

.

Mark E. Coates,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A22496

Agency No. 4K-200-0044-02

DECISION

Complainant filed a timely appeal with this Commission from an

agency decision pertaining to his complaint of unlawful employment

discrimination in violation of Section 501 of the Rehabilitation Act

of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.

The Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.

On December 12, 2001, complainant contacted the EEO office claiming that

he was discriminated against when:

(1) on September 18, 2001, he was issued a Letter of Warning (LOW)

for unsatisfactory work performance/failure to follow instructions;

(2) on September 21, 2001, he was issued a LOW dated September 20, 2001,

for unsatisfactory work performance/failure to follow instructions; and

(3) on September 25, 2001, he was issued a LOW dated September 24,

2001 for unsatisfactory attendance.

Informal efforts to resolve complainant's concerns were unsuccessful.

Subsequently, complainant filed a formal complaint based on disability

and retaliation.

On March 14, 2002, the agency issued a decision dismissing the complaint

for untimely counselor contact. Specifically, the agency concluded that

complainant waited more than sixty days after the allegedly discriminatory

events to contact an EEO Counselor. The agency also noted that

because complainant engaged in prior EEO activity (Case Nos. 4K-200-0158

and 4K-200-0118-99) he was clearly aware of the time limits for initiating

EEO Counselor contact.

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 office on December 12, 2001 regarding

events that occurred in September 2001, well beyond the forty-five day

time limitation. On appeal, complainant contends that he contacted an

EEO Counselor after the expiration of the time limit because he did

not receive the LOWs "until sometime in [sic] later than the dates

of issue." However, complainant's assertion is not supported by the

record. Complainant also indicates that before he contacted the EEO

Counselor, he filed a grievance regarding the LOWs. We note, however

that the use of the negotiated grievance procedure does not toll the

time limit for contacting an EEO Counselor. Schermerhorn v. United

States Postal Service, EEOC Request No. 05940729 (February 10, 1995).

Because complainant has failed to present sufficient reason for tolling

or extending the time limitation, we find that the agency's dismissal

was proper.

Accordingly, the agency's decision to dismiss the complaint is hereby

AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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

July 18, 2002

__________________

Date