0120071842
01-26-2009
Stephen F. Hall, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Stephen F. Hall,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120071842
Agency No. 4K-210-0006-07
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final decision dated February 8, 2007, dismissing his complaint of
unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e
et seq. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.
On October 19, 2006, complainant initiated EEO Counselor contact.
Informal efforts to resolve his concerns were unsuccessful.
On January 19, 2007, complainant filed the instant formal complaint.
Therein, complainant alleged that he was subjected to discrimination on
the bases of sex, disability, and age when:
on an unspecified date, he became aware of alleged "violence in the
workplace" incidents that occurred at the Salisbury Post Office.
The present manager (M1), who was the same manager that issued him
discipline for an act that occurred in August 2005, did not discipline the
employees involved in the current incidents as he had disciplined him.
The record reflects that in his complaint, complainant alleged that
the date of the alleged discriminatory events occurred "from Sept. 2005
to the present." The record further reflects that on August 25, 2005,
M1 issued complainant a Notice of Proposed Removal for improper conduct
and absence without leave. On August 26, 2005, complainant voluntarily
signed a Firm Choice settlement agreement to resolve his discipline.
In its February 8, 2007 final decision, the agency dismissed the complaint
on the grounds of untimely EEO Counselor contact pursuant to 29 C.F.R. �
1614.107(a)(2). The agency determined that complainant's initial EEO
Counselor contact on October 19, 2006, which was beyond the 45-day
limitation period. The agency further determined that complainant
had or should have had reasonable suspicion of unlawful employment
discrimination prior to October 19, 2006. The agency determined that
EEO posters outlining the 45-day requisite time period were on display in
complainant's workplace. Furthermore, the agency noted that complainant
had engaged in prior protected activity and was aware of the time limits
for initiating EEO Counselor contact.
The agency also dismissed the complaint on the alternative grounds
of failure to state a claim pursuant to pursuant to 29 C.F.R. �
1614.107(a)(1). The agency stated that the alleged incidents constituted
a collateral attack on the negotiated grievance procedure.
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.
The Commission finds that the alleged discriminatory events occurred from
September 2005 to the present, but that complainant did not initiate
contact with an EEO Counselor until October 19, 2006, which was beyond
the forty-five (45) day limitation period. The Commission acknowledges
that complainant asserted that the alleged discriminatory act was
"continuing" in nature. Specifically, we note that in his complaint,
complainant alleged that from September 2005 to the present, he became
aware of alleged violence in the workplace incidents that occurred at
the Salisbury Post Office; and that M1 did not discipline the employees
involved in the new incidents as he had disciplined him on August
25, 2005. The Commission determines that complainant had, or should
have had a reasonable suspicion of unlawful employment discrimination
in September 2005, thereby rendering untimely the October 19, 2006 EEO
Counselor contact.
Because we affirm the dismissal of the instant complaint for the reasons
stated herein, it is unnecessary to address the agency's alternative
grounds for dismissal (i.e., failure to state a claim).
Accordingly, the agency's final decision dismissing the instant
complaint on the grounds of untimely EEO Counselor contact is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 77960,
Washington, D.C. 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
January 26, 2009
__________________
Date
2
0120071842
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120071842