01993971
09-15-2000
Peter E. Abah, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Peter E. Abah v. United States Postal Service
01993971
September 15, 2000
Peter E. Abah, )
Complainant, )
)
v. ) Appeal No. 01993971
William J. Henderson, ) Agency No. 1-E-971-0010-99
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On April 9, 1999, complainant filed a timely appeal with this Commission
from an agency's decision dated March 19, 1999, dismissing 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.<1> In his
complaint, complainant alleged that he was subjected to discrimination
on the basis of race (Black) when:
On March 23, 1998, complainant was terminated from his Casual position;
and
On or about November 30, 1998, complainant received a letter notifying
him that he would not be rehired by the agency's Portland office.
The agency dismissed complainant's complaint pursuant to the regulation
set forth at 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and
hereinafter referred to as 29 C.F.R. � 1614.107(a)(2)), for untimely EEO
Counselor contact. The agency noted that the alleged discriminatory
actions occurred on March 23, 1998 and November 9, 1998,<2> and that
complainant did not contact an EEO counselor until January 12, 1999,
well beyond the applicable limitations period.
On appeal, complainant states that although he received the Notice
of Non-selection on November 9, 1998, he did not reasonably suspect
discrimination at this time. Complainant claims that upon receiving the
non-selection letter, he requested his previous evaluations in a December
11, 1999 letter to the agency. Complainant states that he received the
evaluations on or about January 5, 1999. According to complainant,
it was not until he read the evaluations that he began to reasonably
suspect discrimination.
The record contains a Letter of Non-selection dated November 2, 1998.
This letter informs complainant that he will not be selected for
employment as a casual employee based on his prior performance with the
agency. The record contains a letter dated December 11, 1998, to the
agency in which complainant requested copies of his evaluation reports
from November 1997 through March 1998. The record also shows that on
January 5, 1999, the agency sent complainant copies of his supervisor's
evaluations during the time of his employment at the agency.
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 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 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.
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 present case, we find that the agency properly dismissed
complainant's complaint for untimely EEO Counselor contact. In his formal
complaint, complainant states that the specific incidents that occurred
on November 2, 1998, caused him to file a discrimination complaint.
Complainant notes that he was scheduled for an interview on November 2,
1998, but states that he was not interviewed nor was his application
reviewed. In addition, on appeal complainant acknowledges that he
received the Notice of Non-selection on November 9, 1998. The record
shows that upon receiving the letter of non-selection, complainant
requested his supervisor's evaluations from November 1997 through March
1998. We find that complainant should have had a reasonable suspicion
of discrimination more than 45 days prior to his counselor contact.
Accordingly, the agency's decision dismissing complainant's complaint
was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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
19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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 (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:
September 15, 2000
____________________________
Date Carlton M. Hadden, 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:
_______________ __________________________
Date Equal
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.
2The agency incorrectly referred to a different date which it corrected
on appeal.