Robert L. McGuire, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 24, 2000
01993146 (E.E.O.C. Jan. 24, 2000)

01993146

01-24-2000

Robert L. McGuire, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Robert L. McGuire, )

Complainant, )

)

v. ) Appeal No. 01993146

) Agency No. 1-A-072-0038-98

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

______________________________)

DECISION

The Commission finds that the agency's February 11, 1999 decision

dismissing the complaint for on the grounds of untimely EEO counselor

contact is proper pursuant to the provisions of 64 Fed. Reg. 37,644,

37,656 (1999) (to be codified and hereinafter referred to as 29

C.F.R. �1614.107(a)(2).<1>

The record shows that Complainant sought EEO counseling on July 14,

1998, claiming that he had been discriminated against on the bases of

race, and sex when in June 1998, he received a response from a letter

which he wrote to the Senior Personnel Services Specialist concerning

his transfer from the Veterans Administration (VA) to the Postal Service.

Complainant filed a formal complaint alleging that he had been

discriminated against on the bases of race, and sex when on July 24, 1998,

after obtaining a lateral transfer, he failed to maintain his salary.

The record contains a PS Form 50, Notification of Personnel Action, dated

December 25, 1997, which shows that Complainant had been reassigned from

the VA effective December 20, 1997, with a base salary of $22,989.00.

By letter dated June 15, 1998, the Postal Service's Manager of Human

Resources responded to Complainant's May 19, 1998 letter and advised

him that his transfer had been approved effective December 20, 1997.

The record shows that on July 14, 1998, Complainant sought EEO counseling

claiming that he had been discriminated against by the agency's June 15,

1998 letter. When he filed his formal complaint Complainant alleged

that he had been discriminated against in July 1998, when he was unable

to maintain his salary. Notwithstanding these contentions, the record

shows that effective December 20, 1997, Complainant's transfer from the

VA was approved and he was informed through a PS Form 50 concerning the

base salary he would earn at the Postal Service.

The Commission applies a "reasonable suspicion" standard to the

triggering date for determining the timeliness of the contact with an

EEO counselor. Cochran v. United States Postal Service, EEOC Request

No. 05920399 (June 18, 1992). Under this standard, the time period

for contacting an EEO counselor is triggered when the complainant should

reasonably suspect discrimination, but before all the facts that would

support a charge of discrimination may have become apparent. Id.;

Paredes v. Nagle, 27 FEP Cases 1345 (D.D.C. 1982). Based on the record,

we find that complainant suspected or should have reasonably suspected

discrimination on December 20, 1997, when he was informed about his base

salary by the agency. Accordingly, he should have sought EEO counseling

within the 45-day time limit provided by EEOC Regulations. Instead,

the record reflects that he contacted the Human Resources Manager by

letter dated May 19, 1998, and waited for his June 15, 1998 response

before seeking EEO counseling. We have previously held that internal

appeals or informal efforts or the filing of a grievance to challenge

an agency's adverse action do not toll the running of the time limit to

contact an EEO counselor. See Hosford v. Department of Veterans Affairs,

EEOC Request No. 05890038 (June 9, 1989).

Accordingly, the dismissal of the complaint on the basis of untimely

EEO counselor contact was proper and is hereby AFFIRMED.<2>

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 (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:

January 24, 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 after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

Date

Equal Employment Assistant

1 On 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.

2 Because we affirm the agency's dismissal on the grounds of untimely

EEO Counselor contact, we will not address the agency's alternate basis

for dismissal.