01991112
11-05-1999
Ronald Miranda, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Ronald Miranda, )
Appellant, )
)
v. ) Appeal No.01991112
) Agency No. 4-K-200-0101-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
INTRODUCTION
On November 21, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) pertaining to 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. In his complaint, appellant alleged that he was
subjected to discrimination on the bases of race (Caucasian), color
(white), and sex (male) when a manager who is African-American, black,
and female misused an agency credit card but was not issued a letter of
demand<1> while appellant who received a salary overpayment due to an
agency administrative error was issued a letter of demand. In addition,
appellant attached a letter to his complaint in which he expressed
dissatisfaction with the EEO Counselor's handling of his allegation.<2>
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint for (1) untimely EEO contact and (2) failure to state a claim.
BACKGROUND
On June 28, 1995, due to an administrative error, appellant was issued
a salary overpayment in the amount of $1,186.66. On May 8, 1997, the
agency issued appellant a letter of demand notifying him of the error
and demanding repayment.
Appellant initiated EEO counseling on February 20, 1998, and thereafter
filed a formal complaint on June 20, 1998, alleging discrimination based
on race (Caucasian), color (white) and sex (male). In his complaint,
appellant alleged that another agency employee informed him of an agency
manager who was criminally charged for using an agency credit card for
personal use but was never issued a letter of demand. Appellant alleged
that he was told this information on February 9, 1998 and it led him to
believe the agency had discriminated against him. Also in his complaint,
appellant expressed dissatisfaction with the counselor's attention to
and investigation of his allegation.
On October 8, 1998, the agency issued a FAD dismissing issue 1 of
appellant's complaint for untimely EEO contact and issue 2 for failure
to state a claim. This appeal followed.
ANALYSIS AND FINDINGS
Untimely EEO Contact
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints
of discrimination 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 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 she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
In appellant's appeal letter, he provided two justifications for an
extension of the 45 day time limit for EEO contact. First, he stated
that he was unaware of the display of an EEO poster in his agency.
Second, he stated that he contacted the EEO office of his agency within
45 days of discovering an agency manager allegedly misused her agency
credit card and was not held responsible for repayment.
An agency supervisor affirmed that a poster advising of the EEO process
overall and, specifically, the 45-day time frame in which to initiate
EEO contact and the address and telephone number of the EEO Specialist
was on the employee bulletin board from January 1997 to at least the
date of the affidavit.<3> Thus, appellant had constructive notice of
the time limit in which to initiate EEO contact. Dearstein v. USPS,
EEOC Request No. 05970400 (May 30, 1997). In addition, appellant also
stated in his appeal letter that he contacted the EEO Office long before
February 20, 1998, which is the date the agency stated he initiated
contact and 11 days after he was informed of the alleged credit card
misuse by an agency manager. This statement contradicts appellant's
earlier statement regarding the time frame in which he initiated contact.
Accordingly, the agency's dismissal of issue 1 is affirmed.
Failure to State A Claim
EEOC Regulation 29 C.F.R. � 1614.107(a) provides, in relevant part,
that an agency shall dismiss a complaint, or portion thereof, that
fails to state a claim. An agency shall accept a complaint from any
aggrieved employee or applicant for employment who believes that he
or she has been discriminated against by that agency because of race,
color, religion, sex, national origin, age or disabling condition.
29 C.F.R. �� 1614.103; .106(a). The Commission's federal sector case
precedent has long defined an "aggrieved employee" as one who suffers a
present harm or loss with respect to a term, condition, or privilege of
employment for which there is a remedy. Diaz v. Department of the Air
Force, EEOC Request No. 05931049 (April 21, 1994).
Appellant expressed dissatisfaction with the processing of his complaint.
Such dissatisfaction alone does not render appellant aggrieved. Thomason
v. Department of the Army, EEOC Request No. 05970809 (Sep. 05, 1997).
Appellant should notify the head of the EEO office within his agency of
his concerns regarding the processing of complaints. Id. Accordingly,
the agency's dismissal of issue 2 is affirmed.
CONCLUSION
It is the decision of the Commission to AFFIRM the agency's dismissal
of appellant's complaint.
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:
Nov. 5, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1A letter of demand is the official notification of the United States
Postal Service (USPS) to an addressee that he/she is indebted and
responsible for repayment to USPS.
2In a letter dated June 14, 1998, appellant alleged that the EEO Counselor
was unresponsive and he conducted a poor investigation. The agency
addressed this matter in its FAD, thus, it is addressed as issue 2 herein.
3EEO Investigative Affidavit with Certification, both dated August
27, 1998.