Martin M. Marco, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 14, 2000
01986891 (E.E.O.C. Apr. 14, 2000)

01986891

04-14-2000

Martin M. Marco, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Martin M. Marco v. United States Postal Service

01986891

April 14, 2000

Martin M. Marco, )

Complainant, )

)

v. )

) Appeal No. 01986891

William J. Henderson, ) Agency No. 4A-110-0047-97

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION

On September 16, 1998, complainant filed a timely appeal with the

Commission from a final agency decision (FAD), dated August 14, 1998,

pertaining to his complaint of unlawful employment discrimination in

violation of Title VII of the Civil Rights Act of 1964, as amended, 42

U.S.C. � 2000e et seq.<1> The Commission accepts the appeal in accordance

with 64 Fed. Reg. 37,644, 37,659 (to be codified at 29 C.F.R. � 1614.405).

On November 14, 1996, complainant contacted the EEO office claiming

that he was discriminated against when he was charged for 32 hours of

unworked overtime because he could not work on his religious Sabbath.

Informal efforts to resolve complainant's concerns were unsuccessful.

Accordingly, on May 28, 1997, complainant filed a formal complaint.

The agency issued a FAD, dated August 5, 1997, dismissing the complaint

for untimely counselor contact. Thereafter, complainant appealed the

decision to the Commission. See Marco v. USPS, EEOC Appeal No. 01976857

(June 26, 1998). In light of the conflicting information in the record,

the Commission remanded the case to the agency for a supplemental

investigation. Id. The agency was ordered to ascertain the exact dates

the alleged incidents occurred, as well as the date complainant first

reasonably suspected discrimination. Id.

In response to the Commission's Order, the agency conducted a supplemental

investigation and issued the FAD currently on appeal. The August 14,

1998 FAD again dismissed the complaint for untimely counselor contact.

Specifically, the agency indicated that the alleged discriminatory

incidents occurred on July 13, 20 and 27, 1996 and August 10, 1996 and

that, therefore, complainant's November 14, 1996 counselor contact was

beyond the forty-five day time limitation period.

Regarding the timeliness of his counselor contact, complainant argues

on appeal that he only suspected discrimination after speaking with a

co-worker during the first week of October 1996 and first learned that no

employee was called in to replace him for scheduled overtime assignments

in July and August 1996. Complainant argues that upon discovering

this matter, he determined that the agency never had any intention of

calling in a replacement for him for the scheduled overtime dates, and

questioned the urgency of the agency's need to require him to work the

overtime assignments.

In response, the agency argues that complainant's contention that he did

not suspect discrimination until October is implausible. According to

the agency, complainant indicated that prior to the first incident, he

was told that he would be charged with overtime if he could not work on

Saturday. The agency also determined that on the same day, complainant

overheard the acting manager tell complainant's supervisor that if she

needed anyone to work overtime on Saturdays to ask complainant first.

Complainant's supervisor then asked complainant to work Saturday, and

complainant told her he could not because he was a Sabbath observer.

The agency argues that because complainant was asked to work on a Saturday

on four separate occasions, during July and August, he should have found

it to be discriminatory before October 1996.

64 Fed. Reg. 37,644, 37656 (1999) (to be codified and hereinafter

referred to as 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 she was not notified of the

time limits and was not otherwise aware of them, that she did not know

and reasonably should not have known that the discriminatory matter or

personnel action occurred, that despite due diligence she was prevented

by circumstances beyond her control from contacting the Counselor within

the time limits, or for other reasons considered sufficient by the agency

or the Commission.

Based on a review of the record, the Commission finds that the agency

improperly dismissed the complaint for untimely counselor contact.

The supplemental investigation established that the alleged discriminatory

events occurred on July 13, 20, and 27, 1996, and August 10, 1996. At the

time of the alleged events, complainant had informed his supervisor that

he observed the Sabbath and knew that the acting manager had ordered his

supervisor to ask him to work overtime on Saturdays. The agency argues

that if this occurred on four separate occasions he should have suspected

discrimination before October. However, the Commission is persuaded

by complainant assertion that it was not until he learned that another

clerk had not been called to replace him that he suspected discrimination.

We do not find that the four requests to work on Saturday were sufficient

to trigger a reasonable suspicion of discrimination based on religion.

Therefore, the Commission finds that the time limit for contacting an

EEO counselor should be extended.

Accordingly, the agency's dismissal of the complaint for untimely

counselor contact was improper and is REVERSED. The complaint is REMANDED

to the agency for further processing in accordance with this decision

and the Order below.

ORDER (E1199)

The agency is ORDERED to process the remanded claims in accordance with

64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge to

the complainant that it has received the remanded claims within thirty

(30) calendar days of the date this decision becomes final. The agency

shall issue to complainant a copy of the investigative file and also shall

notify complainant of the appropriate rights within one hundred fifty

(150) calendar days of the date this decision becomes final, unless the

matter is otherwise resolved prior to that time. If the complainant

requests a final decision without a hearing, the agency shall issue a

final decision within sixty (60) days of receipt of complainant's request.

A copy of the agency's letter of acknowledgment to complainant and an

copy of the notice that transmits the investigative file and notice of

rights 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 (M0300)

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); 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 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 (R1199)

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 WITHIN NINETY (90) CALENDAR DAYS from the date

that you receive this decision. 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 (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:

April 14, 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.