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.