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.