01992081
03-31-2000
Thomas D. Frew, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Thomas D. Frew v. United States Postal Service
01992081
March 31, 2000
.
Thomas D. Frew,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01992081
Agency No. 1-H-331-0109-98
DECISION
On January 15, 1999, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) received by him on
January 13, 1999, 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.<1> In his complaint, complainant
alleged that he was subjected to discrimination in reprisal for prior
EEO activity when on May 20, 1998, complainant was placed on immediate
suspension.
The agency dismissed the complaint for untimely counselor
contact. Specifically, the agency found that complainant's initial contact
with an EEO Counselor on July 31, 1998, was not within forty-five days
of the incident at issue.
On appeal, complainant argues that he was allowed to return to work on
July 31, 1998, and assumed that he would be reimbursed for the losses
he suffered from the "wrongful suspension." Complainant asserts that he
only filed a complaint when he was not reimbursed for the suspension on
the paycheck following his return.
Complainant's Information for Precomplaint Counseling Form, dated July
29, 1998, notes that complainant requested an appointment with an EEO
Counselor on July 23, 1998. In his formal complaint, dated September
15, 1998, complainant argued that other employees who were suspended
in similar circumstances were returned to duty and made whole for their
losses while in non-pay status. Complainant alleges that his suspension
was wrongful.
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 has held that in order to establish EEO Counselor contact,
an individual must contact an agency official logically connected to
the EEO process and exhibit an intent to begin the EEO process. Allen
v. United States Postal Service, EEOC Request No. 05950933 (July 9,
1996). Complainant's July 23, 1998 request to meet with a counselor
established counselor contact. But this contact still occurred more than
forty-five days after the incident alleged - being placed on suspension.
Complainant alleged that the suspension was wrongful, and consequently,
he was denied pay and not properly reimbursed. Complainant does not
allege that he only suspected discrimination when he was not reimbursed -
he takes issue with the suspension itself. The Commission has held that
for purposes of timeliness, the focus remains the time of the alleged
discriminatory act, not the time when the consequences of that act became
most painful to complainant. See Brooks - Drura v. Department of Veterans
Affairs, EEOC Appeal No. 01984175 (November 5, 1999); Miller v. Department
of Defense, EEOC Appeal No. 01954099 (February 7, 1996). Therefore, the
Commission finds that complainant suspected discrimination at the time
the incident occurred, and failed to timely contact an EEO Counselor.
CONCLUSION
Accordingly, the agency's dismissal is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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. [PAGE 4] 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 31, 2000
__________________
Date
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