Patrick J. Salisbury, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 30, 2000
05990668 (E.E.O.C. May. 30, 2000)

05990668

05-30-2000

Patrick J. Salisbury, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Patrick J. Salisbury v. United States Postal Service

05990668

May 30, 2000

Patrick J. Salisbury, )

Complainant, ) Request No. 05990668

) Appeal No. 01991297

v. )

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION

Patrick J. Salisbury (hereinafter referred to as complainant) timely

initiated a request to the Equal Employment Opportunity Commission

(Commission) to reconsider the decision in Patrick J. Salisbury v. William

J. Henderson, Postmaster General, United States Postal Service, EEOC

Appeal No. 01991297 (April 27, 1999).<1> EEOC Regulations provide that

the Commission may, in its discretion, reconsider any previous decision

where the party demonstrates that: (1) the previous decision involved

a clearly erroneous interpretation of material fact or law; or (2)

the decision will have a substantial impact on the policies, practices,

or operation of the agency. 64 Fed.Reg. 37,644, 37,659 (1999) (to be

codified and hereinafter referred to as 29 C.F.R. � 1614.405(b)). For

the reasons set forth herein, complainant's request is denied.

ISSUE PRESENTED

The issue herein is whether the previous decision properly affirmed

the agency's dismissal of complainant's complaint for failure to timely

contact an EEO Counselor.

BACKGROUND

A review of the record reveals that complainant contacted an EEO Counselor

on August 21, 1998, alleging that he was discriminated against on the

bases of his race (Caucasian) and color (white). Complainant stated that

he learned, on July 20, 1998, that his grievance regarding the denial of

a promotion had been denied at the step 3 level. Complainant subsequently

filed a formal complaint dated October 19, 1998.

In its final decision dated November 3, 1998, the agency dismissed

complainant's complaint on the grounds that he failed to timely contact an

EEO Counselor. The agency noted that complainant was denied a promotion

to a full time position on April 14, 1998. The previous decision affirmed

the dismissal, finding no evidence on appeal which warranted an extension

of the applicable limitation period.

In his request for reconsideration, complainant asserted that the alleged

discrimination did not occur until the step 3 grievance decision was

issued, noting that the agency settled the grievances of other employees.

The agency countered that the request did not meet the criteria for

reconsideration.

ANALYSIS AND FINDINGS

As discussed above, the Commission may, in its discretion, reconsider

any previous decision when the party requesting reconsideration submits

written argument which tends to establish that at least one of the

criteria of 29 C.F.R. � 1614.405(b) is met. In order for a case to be

reconsidered, the request must contain specific information which meets

the requirements of this regulation. For the reasons set forth below,

the Commission denies complainant's request for reconsideration.

The EEOC Regulations require that complaints of discrimination be

brought to the attention of the EEO Counselor within 45 days of the

alleged discriminatory event, or the effective date of an alleged

discriminatory personnel action. 64 Fed.Reg. 37,644, 37,656 (1999) (to

be codified and hereinafter referred to as 29 C.F.R. � 1614.105(a)(1)).

The Commission has adopted a "reasonable suspicion" standard (as opposed

to a "supportive facts" standard) to determine when the limitation

period is triggered under the EEOC Regulations. See, Ball v. USPS,

EEOC Request No. 05880247 (July 6, 1988). Thus, the limitations period

was not triggered until a complainant should reasonably have suspected

discrimination, but before all the facts that would support a charge of

discrimination had become apparent.

Complainant does not dispute that he was denied a promotion in April 1998.

Complainant asserted that he pursued the matter through the grievance

process; however, that action was not sufficient to toll the limitations

period for seeking EEO counseling. See Dorsey v. Department of Defense,

EEOC Request No. 05921021 (April 29, 1993). Thus, the Commission finds

that the dismissal of the complaint for failure to timely contact an

EEO Counselor was proper.<2>

CONCLUSION

After a review of complainant's request for reconsideration, the agency's

response thereto, the previous decision, and the entire record, the

Commission finds that complainant's request fails to meet the criteria

of 29 C.F.R. �1614.405(b), and it is therefore the decision of the

Commission to DENY complainant's request. The decision in EEOC Appeal

No. 01991297 (April 27, 1999) remains the Commission's final decision.

There is no further right of administrative appeal on a decision of the

Commission on this request for reconsideration.

STATEMENT OF RIGHTS ON REQUEST FOR RECONSIDERATION

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (P0400)

This decision of the Commission is final, and there is no further right

of administrative appeal from the Commission's decision. 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.

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:

__05-30-00__ __________________________________

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 claimant, claimant'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.

2It is noted that, to the extent the complainant is challenging the

agency's decision not to settle his grievance, that allegation fails to

state a claim within the meaning of 64 Fed.Reg. 37,644, 37,656 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.103).

Specifically, the matter cited involves a collateral attack on the

grievance process.