Quincy Turner, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 11, 2000
01985502 (E.E.O.C. Feb. 11, 2000)

01985502

02-11-2000

Quincy Turner, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Quincy Turner v. United States Postal Service

01985502

February 11, 2000

Quincy Turner, )

Complainant, )

)

v. ) Appeal No. 01985502

William J. Henderson, ) Agency No. 1H-374-0046-98

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION

On July 7, 1998, complainant filed a timely appeal with this Commission

from a final agency decision (FAD) received by him on June 18, 1998,

pertaining to 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. and the Age Discrimination in Employment Act of

1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. <1> In his complaint,

complainant alleged that he was subjected to discrimination on the

bases of race (Afro-American), sex (male), color (black), age (47),

and in retaliation for prior EEO activity when:

On May 30, 1997, complainant was not recommended for the position of

Systems Analyst, EAS-19.

The agency dismissed complainant's complaint on the grounds of untimely

EEO Counselor contact. In its final decision, the agency noted that

complainant pursued the agency's May 30, 1997 decision through a

Merit System Protection Board (MSPB) appeal. The agency claimed that

complainant was notified from MSPB that his appeal was dismissed due to

lack of jurisdiction on November 3, 1997, and that the decision became

final on December 8, 1997. The agency claimed that since complainant did

not contact the Tennessee EEO Office until March 4, 1998, his contact

was beyond the forty-five day limitation period and, therefore, his

complaint was untimely.

On appeal, complainant claims that he did meet the forty-five day contact

requirement and that therefore his complaint should not be dismissed.

Complainant concedes that his MSPB appeal was dismissed due to lack of

jurisdiction on November 3, 1997, and that the decision became final on

December 8, 1997. However, complainant states that the MSPB decision

did not inform him that he had forty-five days to seek EEO Counseling.

Complainant states that on December 24, 1997, he received a letter from

the EEO Compliance and Appeals Coordinator, Southeast/Southwest Area

Office, stating that he should contact the agency's headquarters office

in order to initiate EEO counseling which complainant claims he did

by sending a certified letter on January 24, 1997, to the headquarters

EEO office. Complainant then states that he received an acknowledgment

letter from the headquarters EEO office which stated that complainant's

request for counseling would be processed by the Southeast/Southwest

Area Office. When complainant did not hear from the Southeast/Southwest

Office, he went to see a counselor in person on March 4, 1998.

The record shows that complainant filed an MSPB appeal regarding the

agency's decision not to promote him on July 3, 1997. According to the

record, the MSPB issued a decision on November 3, 1997, which dismissed

the appeal based on jurisdictional grounds. The record also contains a

December 24, 1997 letter to complainant from the agency's headquarters

EEO Office which informed complainant of his right to contact an EEO

Counselor within forty-five days of receipt of the notice from the

Board. In addition, the record contains a January 27, 1998 letter from

complainant to the agency's headquarters EEO Office in which complainant

requested EEO Counseling. Also included in the record is a February

6, 1998 letter from the headquarters EEO Office to complainant which

informed complainant that his complaint would be forwarded to the

Southeast/Southwest EEO Office and would be processed there.

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.

According to 64 Fed. Reg. 37,644 37,659 (1999) (to be codified and

hereinafter referred to as 29 C.F.R. � 1614.302(b)), if a person files

a mixed case appeal to the MSPB alleging discrimination, and the MSPB

dismisses the appeal for lack of jurisdiction, the agency must notify

the aggrieved person of his right to contact an EEO Counselor within

forty-five days of receipt of the notice and to file an EEO complaint.

In addition, this regulation provides that the date of the initial EEO

Counselor contact will be deemed to be the date on which the MSPB appeal

was filed 29 C.F.R. � 1614.302(b).

In the present case, the alleged discriminatory act occurred on May

30, 1997, when complainant was not recommended for the Systems Analyst

position. Therefore, in order to be within the forty-five day limitation

period, complainant would have had to contact an EEO Counselor by July 14,

1997. Since complainant originally filed a mixed case appeal which was

dismissed by the MSPB for lack of jurisdiction, the date of the initial

EEO Counselor contact is the date on which the MSPB appeal was filed.

The record shows that complainant filed an MSPB appeal on July 3, 1997;

therefore, his initial EEO Counselor contact was timely.

Although complainant filed an MSPB appeal, his appeal was dismissed by

the Board for jurisdictional reasons on November 3, 1997. According to

29 C.F.R. � 1614.302(b), when the MSPB dismisses a mixed case appeal on

jurisdictional grounds, the agency is required to promptly notify the

individual in writing of the right to contact an EEO Counselor within

forty-five days of receipt of this notice and to file an EEO complaint.

In the present case, the record reveals that the agency sent complainant

the requisite notice of his right to contact an EEO Counselor on December

24, 1997. In addition, the record reveals that complainant requested

EEO counseling from the headquarters EEO office on January 27, 1998.

Thus, complainant timely contacted an EEO Counselor within forty-five

days of receipt of the requisite notice from the agency.

Accordingly, the agency's decision to dismiss complainant's complaint

was improper, and is hereby REVERSED. The complaint is REMANDED to the

agency for further processing in accordance with this decision and the

Order below.

ORDER (E1199)

The agency is ORDERED to process the remanded claims in accordance with

64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge to

the complainant that it has received the remanded claims within thirty

(30) calendar days of the date this decision becomes final. The agency

shall issue to complainant a copy of the investigative file and also shall

notify complainant of the appropriate rights within one hundred fifty

(150) calendar days of the date this decision becomes final, unless the

matter is otherwise resolved prior to that time. If the complainant

requests a final decision without a hearing, the agency shall issue a

final decision within sixty (60) days of receipt of complainant's request.

A copy of the agency's letter of acknowledgment to complainant and an

copy of the notice that transmits the investigative file and notice of

rights must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to the

complainant. If the agency does not comply with the Commission's order,

the complainant may petition the Commission for enforcement of the order.

29 C.F.R. � 1614.503(a). The complainant also has the right to file a

civil action to enforce compliance with the Commission's order prior

to or following an administrative petition for enforcement. See 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �

1614.503(g). Alternatively, the complainant has the right to file a

civil action on the underlying complaint in accordance with the paragraph

below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407

and 1614.408. A civil action for enforcement or a civil action on the

underlying complaint is subject to the deadline stated in 42 U.S.C. �

2000e-16(c)(Supp. V 1993). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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). 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R1199)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court WITHIN NINETY (90) CALENDAR DAYS from the date

that you receive this decision. In the alternative, you may file a

civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. 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:

February 11, 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:

_______________ __________________________

Date Equal Employment Assistant

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.