Perman W. Davis, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 9, 2000
01991371 (E.E.O.C. Feb. 9, 2000)

01991371

02-09-2000

Perman W. Davis, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Perman W. Davis, )

Complainant, )

)

v. ) Appeal No. 01991371

) Agency No. 1-B-011-0039-98

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

Complainant filed an appeal with this Commission from a final decision of

the agency concerning his complaint of unlawful employment discrimination,

in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. �2000e et seq., the Age Discrimination in Employment Act

of 1967, as amended, 29 U.S.C. �621 et seq., and the Rehabilitation

Act of 1973, as amended, 29 U.S.C. �791 et seq.<1> The final agency

decision was received by appellant on November 5, 1998. The appeal was

postmarked December 4, 1998. Accordingly, the appeal is timely (see 64

Fed. Reg. 37,644 37,659 (1999)(to be codified at 29 C.F.R. �1614.402)),

and is accepted in accordance with EEOC Order No. 960, as amended.

Complainant contacted an EEO counselor on April 24, 1998, regarding

claims of discrimination. Specifically, complainant alleged that he

was discriminated against when:

(1) his April 12, 1995 request to be converted from a Part-time Regular

Mail Handler (PTR) to a Part Time Flexible Mail Handler (PTF) was not

made effective until February 14, 1998; and

(2) during the last week of April 1998, his union steward was advised by

a Human Resource Specialist that he would not be retroactively reassigned

to a PTF status.

Informal efforts to resolve complainant's concerns were unsuccessful.

On September 25, 1998, complainant filed a formal complaint alleging that

he was the victim of unlawful employment discrimination on the bases of

race, color, sex , age, and disability.

On November 4, 1998, the agency issued a final decision (FAD) dismissing

complainant's complaint for untimely counselor contact. Regarding claim

(1), the agency determined that complainant's April 24, 1998 EEO contact

regarding his April 1995 request to be converted to a PTF Mail Handler

was beyond the forty-five (45) day time period for counselor contact.

The agency states that EEO posters outlining the proper procedures for

counselor contact are displayed at complainant's workplace. The FAD

found also that claim (2) of complainant's complaint regarding his

union steward learning in the last week of April 1998 that he would

not be retroactively reassigned to PTF status, was an attempt to make

claim (1) timely. The agency indicated further in its decision, that

complainant's complaint constituted a collateral attack on a grievance

decision concerning complainant's conversion to PTF Mail Handler.

The Commission notes that 64 Fed. Reg. 37,644, 37656 (1999) (to be

codified and hereinafter referred to as EEOC Regulation 29 C.F.R. �

1614.107(a)(2). requires that complaints of discrimination should be

brought to the attention of the EEO Counselor within forty-five (45)

days of the date of the matter alleged to be discriminatory or, in the

case of a personnel action, within forty-five (45) days of the effective

date of the action. The Commission has adopted a "reasonable suspicion"

standard (as opposed to a "supportive facts" standard) to determine when

the forty-five (45) day limitation period is triggered. See Ball v. USPS,

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

is not triggered until a complainant reasonably suspects discrimination,

but before all the facts that support a charge of discrimination have

become apparent.

EEOC Regulations provide that the agency or the Commission shall extend

the time limits when the individual shows that he was not notified of the

time limits and was not otherwise aware of them, that he did not know

and reasonably should not have known that the discriminatory matter or

personnel action occurred, that despite due diligence he was prevented

by circumstances beyond his control from contacting the Counselor within

the time limits, or for other reasons considered sufficient by the agency

or the Commission.

In the instant matter, complainant alleges that the agency engaged in

discriminatory conduct when it failed for three years to honor his request

to be converted from PTR to PTF Mail Handler. The record indicates that

on April 12, 1995, complainant requested that the agency convert him

from regular to flexible status, but that he was not converted to PTF

Mail Handler until February 14, 1998. The report of the EEO Counselor

indicates that other PTR handlers hired at the time complainant was

hired were converted to flexible handlers in May 1997.

Upon review, we find that the agency's decision dismissing complainant's

complaint as untimely was proper. Complainant does not indicate that

he was unaware of the time limits for counselor contact, nor does he

suggest that he was prevented for any reason from timely seeking contact

with an EEO Counselor. We are persuaded by the agency's contention that

complainant had a reasonable suspicion of discrimination regarding his

conversion, prior to his EEO contact on April 24, 1998. Complainant

states in his complaint that he believed that other mail handlers were

converted to PTF status before him. The record also indicates that

complainant filed a grievance regarding the issue on February 28,

1998, wherein he requested that his seniority date for his PTF job

classification be re-adjusted.

The Commission has held that where there is an issue of timeliness,

the agency always bears the burden of obtaining sufficient information

to support a reasoned determination as to timeliness. See Williams

v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992).

Complainant has offered no explanation for his delay in seeking counseling

regarding the issue of his conversion. Accordingly, the agency has met

it's burden concerning the issue of untimeliness. Moreover, the record

shows that complainant filed a grievance before he sought EEO counseling.

The Commission has specifically held that an internal appeal of the

agency's adverse action and/or the filing of a grievance do not toll the

running of the time limit to contact of an EEO Counselor. See Hosford

v. Department of Veterans Affairs, EEOC Request No. 05890038 (June 9,

1989).

Regarding claim (2), the Commission determines that the matter contained

therein is merely an elaboration of the issue raised in claim (1),

relating to the agency's purported delay in converting his PTR status

to PTF status.

Accordingly, the agency's decision dismissing complainant's complaint

for untimely EEO Counselor contact is hereby AFFIRMED for the reasons

set forth herein.

FOR THE COMMISSION:

February 9, 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:

______________

_________________________________

DATE1On 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.