Raymond L. Doolittle, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 14, 1999
01981699 (E.E.O.C. Jan. 14, 1999)

01981699

01-14-1999

Raymond L. Doolittle, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Raymond L. Doolittle v. United States Postal Service

01981699

January 14, 1999

Raymond L. Doolittle, )

Appellant, )

)

v. ) Appeal No. 01981699

) Agency No. 4E-970-0006-98

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

______________________________)

DECISION

On December 22, 1997, appellant filed a timely appeal with this Commission

from a final agency decision (FAD) received by him on December 16, 1997,

pertaining to his complaint of unlawful employment discrimination in

violation of the Age Discrimination in Employment Act of 1967 (ADEA),

as amended, 29 U.S.C. �621 et seq., and �501 of the Rehabilitation Act

of 1973, as amended, 29 U.S.C. �791 et seq. In his complaint, appellant

alleged that he was subjected to discrimination on the bases of age

(DOB 12/13/47), mental disability (emotional stress), and in reprisal

for prior EEO activity when:

On September 17, 1997, appellant was interviewed by management;

On November 16, 1996, appellant was sent for a Fitness for Duty (FFD)

examination; and

On August 21, 1997, appellant was sent for a second FFD examination.

On December 11, 1997, the agency issued a FAD accepting allegation (1)

for investigation and dismissing allegations (2) and (3) pursuant to EEOC

Regulation 29 U.S.C. �1614.107(b), for failure to initiate contact with

an EEO Counselor in a timely manner. Specifically, the agency determined

that appellant's October 17, 1997 initial EEO Counselor contact occurred

more than forty-five days from the date of the incidents described in

allegations (2) and (3) and was, therefore, untimely.

On appeal, appellant contends that the agency erred in dismissing

allegation (3), as he was in contact with the EEO office on September 10,

1997.

In response, the agency acknowledges that appellant was in contact

with the EEO office in September 1997, but asserts that his contact

concerned allegations of sexual harassment by a third party on whose

behalf appellant was acting.

The Commission notes that the EEO Counselor's Report states that appellant

raised the issues identified in allegations (2) and (3) for the first

time on November 13, 1997. Additionally, the record contains a letter

from appellant dated November 24, 1997, in which he notes that he was in

contact with an EEO Specialist in "early sept[ember] of [19]97" concerning

alleged sexual harassment to which a third party was subjected.

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. 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.

In the instant case, we find that the agency properly dismissed

appellant's complaint for untimely EEO Counselor contact. A review of

the record shows that appellant's September 10, 1997 contact with the

EEO office concerned the sexual harassment complaint of a third party.

The EEO Counselor noted that appellant raised for the first time the

issues identified in allegations (2) and (3) on November 13, 1997, and

appellant provided no evidence in rebuttal. As appellant's initial EEO

Counselor contact concerning allegations (2) and (3) occurred more than

forty-five days from the date of the incidents of alleged discrimination,

we find that dismissal of those allegations was proper pursuant to 29

U.S.C. �1614.107(b). Accordingly, the agency's decision 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(c).

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).

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:

January 14, 1999

____________________________

DATE Ronnie Blumenthal, Director

Office of Federal Operations