01985238
09-09-1999
Raymon L. Crook, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Southeast/Southwest Region), Agency.
Raymon L. Crook, )
Appellant, )
)
v. ) Appeal No. 01985225
) Agency No. 1H328006698
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Southeast/Southwest Region), )
Agency. )
______________________________)
DECISION
Appellant filed an appeal with this Commission from a final agency
decision 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 final agency decision was received by
appellant on June 1, 1998. The appeal was postmarked June 23, 1998.
Accordingly, the appeal is timely (see 29 C.F.R. � 1614.402(a)), and is
accepted in accordance with EEOC Order No. 960, as amended.
The appellant filed a formal complaint on April 6, 1998, alleging
that he was the victim of unlawful employment discrimination on the
basis of race (Black), color (black) and reprisal (prior EEO activity)
when he was terminated on April 15, 1997. After initially accepting
this allegation for investigation on May 4, 1998, the agency issued a
final agency decision on May 28, 1998, dismissing the complaint under
29 C.F.R. � 1614.107(b) for failure to timely contact an EEO counselor.<1>
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 Ball
v. United States Postal Service, EEOC Request No. 05880247 (July 6, 1988).
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. 29 C.F.R. � 1614.105(a)(2).
In the instant case, a review of the EEO Counselor's Inquiry report
provided by the agency reveals that appellant initiated contact with an
EEO counselor on March 17, 1998, significantly more than 45 days after
the alleged discriminatory termination of April 15, 1997.
On appeal, appellant alleges that he contacted the EEO counselor assigned
to the Orlando Processing and Distribution Center of Florida on or
about April 16, 1997 and informed that counselor that he believed his
termination was the result of discrimination. The appellant also alleges
that on April 17, 1997 he was issued an EEO informal complaint number
(1-H-328-0026-97), but that he received no other information concerning
his rights or any actions required of him to further his EEO claim and as
a result assumed that his claim was being handled by the EEO office<2>.
Appellant argues that his complaint should therefore not be dismissed
for failure to timely contact an EEO counselor, but should be remanded
for further review and investigation.
The agency did not address this allegation on appeal. However, even
assuming that appellant did initially contact an EEO counselor on or
about April 16, 1997, Commission precedent holds that for purposes of
tolling the time limit, the appellant must intend by initiating contact
to pursue EEO counseling. Snyder v. Department of Defense, EEOC Request
No. 0501061 (November 1, 1990). Here, on April 17, 1997, rather than
pursue counseling, appellant filed a union grievance in an effort to
reverse the termination. His grievance was denied by letter dated May
23, 1997.<3> He did not actively pursue counseling until March 18, 1998,
almost a year after the allegedly discriminatory event and more than 7
months after he failed to achieve success via the grievance process.<4>
Appellant offers no excuse for this passivity other than claiming it
was the EEO counselor's fiduciary duty to communicate with him.<5>
Appellant's contention that he initially contacted an EEO counselor
around April 16, 1997 and then assumed his claim was being handled
is insufficient to justify an extension of the applicable time limit
for this length of time. See Baldwin County Welcome Center v. Brown,
466 U.S. 147, 151 (1984) (per curiam) ("One who fails to act diligently
cannot invoke equitable principles to excuse lack of diligence"); Rys
v. United States Postal Service, 886 F.2d 443, 446 (1st Cir. 1989) ("to
find succor in equity a Title VII plaintiff must have diligently pursued
her claim"). Furthermore, appellant's use of the negotiated grievance
process does not toll the time limits for initiating EEO counseling.
Schermerhorn v. United States Postal Service, EEOC Request No. 05940729
(February 10, 1995).
Accordingly, the agency's decision to dismiss appellant's complaint for
failure to timely initiate EEO counseling is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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.
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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.F.R.).
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:
Sept. 9, 1999
DATE
Carlton
M.
Hadden,
Acting
Director
Office
of
Federal
Operations
1 The final agency decision cites to 29 C.F.R. � 1614.105(a)(1) which
contains the applicable time limit as the basis for the dismissal, as
opposed to 29 C.F.R. � 1614.107(b) which requires dismissal of complaints
that do not comply with applicable time limits.
2 At this time, appellant also filed a grievance regarding his termination
and alleges that he should have received a letter from the EEO when the
grievance procedure was over, citing to the booklet entitled �What You
Need to Know About EEO� and the rule regarding deferring an EEO complaint
once a grievance is filed. This argument is misplaced in that appellant
had not yet filed a formal complaint when he filed his grievance.
3 On appeal, appellant notes that the grievance process continued
through July 1997, due to his appeal of the decision.
4 This 7 month time period is based on the acceptance of appellant's
allegation that the appeal of his grievance continued through July 1997.
5 There is Commission precedent excusing untimely contact with an
EEO counselor when an appellant had contacted an EEO Office, but then
chose to pursue the matter at issue through the grievance process and
did not actively pursue counseling until after his grievance was denied
(significantly more than 45 days after the alleged discriminatory event).
However, this line of cases involves situations wherein an EEO counselor
actively discouraged the complainant from continuing with the EEO
process. See Arino v. Social Security Administration, EEOC Request
No. 05950541 (June 13, 1996) and cases citing to it. The instant case
does not fit within this rubric, as appellant does not claim that the
EEO Office discouraged him from continuing with the EEO process.