05980969
08-25-2000
Tommie L. Hausey, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Southwest Area), Agency.
Tommie L. Hausey v. United States Postal Service (Southwest Area)
05980969
August 25, 2000
.
Tommie L. Hausey,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Request No. 05980969
Appeal No. 01980272
Agency No. 1G708003097
DENIAL OF REQUEST FOR RECONSIDERATION
Tommie L. Hausey (complainant) initiated a request to the Equal Employment
Opportunity Commission (EEOC or Commission) to reconsider the decision in
Tommie L. Hausey v. United States Postal Service, EEOC Appeal No. 01980272
(July 10, 1998).<1> EEOC Regulations provide that the Commission may,
in its discretion, reconsider any previous Commission decision where the
requesting party demonstrates 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. See 64 Fed. Reg. 37,644,
37,659 (1999) (to be codified and hereinafter referred to as 29 C.F.R. �
1614.405(b)).
After a review of the complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that the
request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it
is the decision of the Commission to deny the request. Complainant's
submission merely reiterates information contained in the original
complaint file. Complainant contends, as he did in his appeal, that
his failure to contact an EEO Counselor until eight years after he was
denied employment is justified by the fact that he was incarcerated
shortly after he was denied employment.
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.<2> 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). "The time
period is triggered as soon as a complainant suspects discrimination
and the complainant may not wait until all supporting facts have become
apparent." Whalen v. Department of Justice, EEOC Request No. 05960147
(September 18, 1997).
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.
Here, the record establishes that complainant was denied employment
in March of 1989 and that he was arrested in October or November 1989.
Thus, even if there is merit to complainant's argument that incarceration
is a valid justification for untimely counselor contact, complainant
has no explanation for why he did not contact a counselor between the
denial of employment in March 1989 and his arrest in October/November
1989. While complainant may have also intended to argue that he
was incapacitated during this time due to his mental disability,
the Commission has consistently held, in cases involving physical or
mental health difficulties, that an extension is warranted only where
an individual is so incapacitated by his condition that he is unable
to meet the regulatory time limits. See Crear v. United States Postal
Service, EEOC Request No. 05920700 (October 29, 1992); Weinberger
v. Department of the Army, EEOC Request No. 05920040 (February 21,
1992); Hickman v. Department of the Navy, EEOC Request No. 05910707
(September 30, 1991); Johnson v. Department of Health and Human Services,
EEOC Request No. 05900873 (October 5, 1990); and Zelmer v. United States
Postal Service, EEOC Request No. 05890164 (March 8, 1989). In the case at
hand, complainant himself noted that soon after he was denied employment,
he contacted the union about filing a grievance. Given this activity,
he cannot successfully argue that he was so incapacitated that he was
unable to contact an EEO Counselor within the time limits.
Accordingly, complainant has failed to establish that the time
requirements for contacting an EEO counselor should be waived.
The decision in EEOC Appeal No. 01980272 remains the Commission's final
decision. There is no further right of administrative appeal on the
decision of the Commission on this request for reconsideration.
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (P0400)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
August 25, 2000
__________________
Date
1On 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.
2 Regulations in effect in 1989 required an aggrieved individual to
contact an EEO Counselor with thirty (30) days of the date of the matter
alleged to be discriminatory.