0120101177
06-15-2010
Nicholas V. Sinopoli,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 0120101177
Agency No. 4C-080-0001-10
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated December 22, 2009, dismissing 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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. Upon review, the Commission finds
that Complainant's complaint was properly dismissed pursuant to 29
C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact.
BACKGROUND
In his complaint, Complainant alleged that he was subjected to
discrimination on the bases of disability and age (54) when:
On July 31, 2009, he retired from his position as a Modified Distribution
Clerk because he was told that there was no longer any available work
for him to do; however, some time later the station allowed a Modified
Clerk to engage in clerk work.
The Agency dismissed the complaint, in part, on the grounds that
Complainant did not contact an EEO Counselor in a timely manner as
specified at 29 C.F.R. � 1614.105(a)(1).
CONTENTIONS ON APPEAL
Complainant argues that it would be inequitable for the 45 day time
limitation to begin to run as of the alleged date of discrimination
(July 31, 2009), because he was not aware of any actual discrimination
at that time. The Agency continues to adhere to its position, viz. that
Complainant failed to timely contact an EEO Counselor.
ANALYSIS AND FINDINGS
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 45 days of the date of the matter allegedly
to be discriminatory or, in the case of a personnel action, within 45
days of the effective date of the action. The regulations provide
that the agency or the Commission shall extend the time limits when
the individual shows that he did not know and reasonably should not
have known that the discriminatory matter or personnel action occurred.
29 C.F.R. � 1614.105(a)(2). The Commission has adopted a "reasonable
suspicion" standard (as opposed to a "supportive facts" standard) to
determine when the 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.
After Complainant retired, another individual, effective August 29, 2009,
was given the assignment of Modified Clerk at Complainant' station.
We disagree with Complainant's contention that this event triggered a
reasonable suspicion of discrimination. Complainant worked full time,
and the Modified Clerk who was assigned subsequent to his departure worked
only two hours a day. Also, on February 20, 2009, Complainant signed
a grievance settlement that when Volunteer Early Retirement Authority
(VERA) is offered, he must apply for VERA.
The record discloses that the alleged discriminatory event occurred
on July 31, 2009, but Complainant did not initiate contact with an
EEO Counselor until October 7, 2009, which is beyond the forty-five
(45) day limitation period. On appeal, Complainant has presented no
persuasive arguments or evidence warranting an extension of the time
limit for initiating EEO Counselor contact.1 Accordingly, the agency's
final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
June 15, 2010
__________________
Date
1 Because dismissal was proper in this case, the Commission does not
address the Agency's dismissal for failure to state a claim.
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0120101177
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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