01A03932_r
03-26-2001
Ronald A. Crisp, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Ronald A. Crisp v. United States Postal Service
01A03932
March 26, 2001
.
Ronald A. Crisp,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A03932
Agency No. 1A-126-0036-99
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated March 15, 1999, dismissing 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. and Section 501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq. In his
complaint, complainant alleged that he was subjected to discrimination
on the bases of sex (male) and disability (tendinitis) when:
Complainant's impairment was not reasonably accommodated resulting in
management's continuous denial of a bid job from 1991 through January
1996;
Complainant was not placed in his bid job after being awarded the job
through an arbitration decision dated June 5, 1999; and
On January 29, 1996, complainant's training on the Small Parcel and
Bundle Sorter (SPBS) was terminated.
The agency dismissed issues (1) and (3) of complainant's complaint
pursuant to the regulation set forth at 29 C.F.R. � 1614.107(a)(2),
for untimely EEO Counselor contact. Specifically, the agency noted
that complainant did not contact an EEO Counselor until June 15, 1999,
nearly 3 � years after his denial of the January 18, 1996 bid and the
termination of his SPBS training on January 29, 1996. In addition, the
agency stated that complainant failed to establish a continuing violation.
The agency stated that complainant reasonably suspected discrimination
based on his perceived disability at the time he filed his grievance in
December 1993. With regard to complainant's claim of discrimination
based on sex, the agency rejected complainant's argument that he did
not realize he was discriminated against until June 15, 1999, when his
representative informed him that disabled females were placed in their bid
assignments. Specifically, the agency noted that the females identified
by complainant were not placed into the same assignments complainant was
denied and stated that the placing of females into bid assignments on
which complainant did not bid is not relevant in determining whether
complainant reasonably suspected he was subject to discrimination.
Finally, the agency dismissed issue (2) pursuant to the regulation
set forth at 29 C.F.R. � 1614.107(a), for failure to state a claim.
Specifically, the agency stated that in issue (2) complainant alleged
noncompliance with a previous grievance decision.
On appeal complainant states that he did not reasonably suspect
discrimination until June 1999. Complainant states that he filed his
complaint based on the fact that an Arbitration Award dated February
2, 1998, was not being adhered to by the agency and also because he
just learned that females had been given the same disability rights he
had been denied. Finally, complainant argues that on June 5, 1999, an
Arbitration Award made it clear that his right to the bid jobs was valid
and that the agency had denied the jobs based on complainant's disability,
even though complainant had medical documentation that established that
he was qualified for the jobs.
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 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.
With regard to issues (1) and (3), we find that the agency properly
dismissed these issues for untimely EEO Counselor contact. The record
reveals that complainant's training was terminated on January 29,
1996, and the date of the last denial of a bid job in his complaint
was January 18, 1996. The record reveals that complainant initiated
contact with an EEO Counselor on June 15, 1999. Complainant argues
that he did not recognize he was discriminated against until his
grievance was sustained on June 6, 1999. We note, however that the
use of the negotiated grievance procedure does not toll the time limit
for contacting an EEO Counselor. Schermerhorn v. United States Postal
Service, EEOC Request No. 05940729 (February 10, 1995). Furthermore,
in his grievance complainant alleged that he was unfairly denied bid
jobs and the opportunity to train based on his perceived disability.
Thus, we find that complainant reasonably suspected discrimination at
the time he filed his grievance.
With regard to issue (2), we find that the agency properly denied this
claim for failure to state a claim. Complainant alleged that he was not
placed in his bid job after being awarded the job through an arbitration
decision dated June 5, 1999. Complainant is alleging noncompliance
with the June 5, 1999 arbitration award. The Commission has held that
an employee cannot use the EEO complaint process to lodge a collateral
attack on another proceeding. See Wills v. Department of Defense ,
EEOC Request No. 05970596 (July 30, 1998); Kleinman v. United States
Postal Service, EEOC Request No. 05940585 (September 22, 1994); Lingad v.
United States Postal Service, EEOC Request No. 05930106 (June 25, 1993).
The proper forum for complainant to have raised his challenges to actions
which occurred during the arbitration proceeding was at that proceeding
itself. It is inappropriate to now attempt to use the EEO process to
collaterally attack actions which occurred during the arbitration process.
Accordingly, we the agency's decision to dismiss complainant's complaint
was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 26, 2001
__________________
Date