Nicholasv.Sinopoli, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.

Equal Employment Opportunity CommissionJun 15, 2010
0120101177 (E.E.O.C. Jun. 15, 2010)

0120101177

06-15-2010

Nicholas V. Sinopoli, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.


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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