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.