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.