01993283
03-29-2000
Robert A. Friday, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Robert A. Friday, )
Complainant, )
)
v. ) Appeal No. 01993283
) Agency No. 1-G-701-0104-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On March 16, 1999, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) received by him on February 17, 1999,
pertaining to his complaint of unlawful employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. � 791 et seq.<1> In his complaint, complainant alleged that
he was subjected to discrimination on the basis of physical disability
(panic attack disorder, caused by chemical imbalance) when on July 23,
1998, complainant became aware that some of his absences qualified for
the Family Medical Leave Act (FMLA). Complainant alleges that had the
agency properly informed him about his rights under FMLA, his request
for a transfer to another postal facility would not have been denied on
June 4, 1998, as a result of a purportedly deficient attendance record.
The agency dismissed complainant's complaint pursuant to Volume
64 Fed. Reg. 37, 644, 37, 656 (1999)(to be cited as 29 C.F.R. �
1614.107(a)(2)), for failure to timely initiate contact with an EEO
Counselor. Specifically, the agency found that since complainant's
request for transfer was denied on June 4, 1998, complainant's August 10,
1998 contact of an EEO Counselor was untimely.
On appeal, complainant argues that he only developed a reasonable
suspicion of unlawful employment discrimination on July 23, 1998, thereby
rendering timely his initial EEO Counselor contact on August 10, 1998.
Specifically, complainant argues that on July 23, 1998, he was unaware
that he had any recourse in this matter �until [he] received a copy of
Federal Regulations Part 825 from the Department of Labor (Wage and Hour
Division). . . �
The record in this case contains a letter from complainant dated November
5, 1998. Therein, complainant makes the following statement: �Between
April 1996 and March 1998 I had several absences that are attributable to
one underlying medical condition. Until March 1998, I had no knowledge
that my condition qualified as a Family Medical Leave Act condition.�
Volume 64 Fed. Reg. 37,644, 37656 (1999) (to be codified and hereinafter
referred to as EEOC Regulation 29 C.F.R. � 1614.105(a)(1)) requires
that complaints of discrimination should be brought to the attention
of the EEO 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.
The FAD states that complainant had forty-five days from June 4, 1998,
the date his transfer request was denied, in which to seek counseling
concerning his allegations of discrimination. The agency also refers
to a letter from complainant dated November 5, 1998 in which he stated
that he was aware in March 1998 that his condition qualified under FMLA.
On appeal, as well as in his informal complaint, complainant indicates
that he did not become completely aware that his rights had been violated
until July 23, 1998, when he met with agency officials concerning his
transfer denial. We are unpersuaded by complainant's arguments.
The record reflects that complainant was aware as early as March 1998,
that some of the absences attributable to his medical condition were
purportedly covered under the FMLA. The record further reflects that
complaint was subsequently made aware, on June 4, 1998, that his transfer
request was denied for attendance reasons. We find that complainant
had, or should have had, a reasonable suspicion of unlawful employment
discrimination at that point. Contrary to complainant's assertions on
appeal, we discern nothing in the record relating to the events of July
23, 1998, that would cause complainant to develop a reasonable suspicion
on that day. Accordingly, the agency's decision to dismiss complainant's
complaint 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
March 29, 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.