Stephen F. Hall, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 26, 2009
0120071842 (E.E.O.C. Jan. 26, 2009)

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

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0120071842