01993163
05-11-2000
Michael Tonzola, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Michael Tonzola, )
Complainant, )
)
v. ) Appeal No. 01993163
) Agency No. 4-D-230-0016-99
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On March 3, 1999, the complainant filed a timely appeal of a February
11, 1999 final agency decision dismissing his complaint pursuant to 64
Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter referred
to as EEOC Regulation 29 C.F.R. � 1614.107(a)(2)), for failure to contact
an EEO Counselor in a timely manner.<1>
The complainant, a supervisor at the time of the alleged discrimination,
alleged that he was discriminated against on the bases of sex (male) when
in December 1996, he was disciplined by Postmaster A for not reporting
an accident involving an employee in a timely manner. In dismissing the
complaint, the agency stated that the complainant failed to contact an
EEO Counselor until July 24, 1998, beyond the requisite 45 days.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that an aggrieved
person initiate contact with an EEO Counselor within 45 days of the date
of the matter alleged to be discriminatory or, in the case of a personnel
action, within 45 days of the effective date of the action. Waiting until
one has "supporting facts" or "proof" of discrimination before initiating
Counselor contact can result in untimeliness. See Bracken v. U.S. Postal
Service, EEOC Request No. 05900065 (March 29, 1990).
EEOC Regulation 29 C.F.R. �1614.105(a)(2) permits the time period to be
extended under certain circumstances and 29 C.F.R. �1614.604(c) provides
that the time limits in Part 1614 are subject to waiver, estoppel and
equitable tolling. Although time limitations are subject to waiver,
estoppel and equitable tolling, complainants are required to act with due
diligence in pursuit of their claims. See Sapp v. U.S. Postal Service,
EEOC Request No. 05950666 (May 31, 1996); Jenkins v. Department of the
Army; EEOC Request No. 05940721 (January 26, 1996); O'Dell v. Department
of Health and Human Services, EEOC Request No. 05901130 (December 27,
1990).
Upon review, the Commission finds that the agency's decision was proper.
The record reveals, and it is undisputed, that the complainant initiated
EEO contact on July 24, 1998, for a discriminatory event that occurred
in December 1996. Accordingly, EEO Counselor contact was untimely and
the complainant has not provided justification sufficient to extend the
time limit. During informal counseling, the complainant stated that in
November 1997, a female supervisor was not similarly disciplined by the
same Postmaster when she failed to report an accident. The complainant,
however, did not contact an EEO Counselor until several months after
the incident involving the female supervisor. Although the record
contains medical reports indicating that the complainant was suffering
from depression, the Commission is not persuaded that the complainant
was so incapacitated that he was unable to contact an EEO Counselor until
July 1998. See Crear v. U.S. Postal Service, EEOC Request No. 05920700
(October 29, 1992).
Accordingly, the final agency decision is AFFIRMED.
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
May 11, 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 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.