01991768
09-03-1999
Wade A. Simmons, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Wade A. Simmons, )
Appellant, )
) Appeal No. 01991768
v. )
) Agency No. 4-C-175-0092-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision concerning his complaint of unlawful employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. �791 et seq. The appeal is accepted in accordance with EEOC
Order No. 960, as amended<1>.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed a portion
of appellant's complaint for untimely contact with an EEO Counselor.
BACKGROUND
Appellant filed a formal complaint on August 31, 1998, alleging
discrimination on the basis of disability (work related injuries) when:
(1) after requesting to be a 204-B supervisor, he was told, on June 22,
1998, that he could not be promoted to 204-B status while on limited
duty; and
(2) since November 21, 1994, the date he suffered his on-the-job injury,
he has performed supervisory related duties, but his subsequent requests
for promotion, specifically his written request of January 1995,
were denied.
In its final agency decision, the agency dismissed the second
allegation pursuant to 29 C.F.R. �1614.107(b) upon concluding that
appellant failed to comply with the time requirements contained within
29 C.F.R. �1614.105(a)(1). The first allegation was accepted for
investigation. This appeal followed.
ANALYSIS AND FINDINGS
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 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.
After a careful examination of the file, the evidence reveals that
appellant argued, in a letter to the agency dated October 29, 1998,
that he did not request counseling sooner because he was told that
�there was no means to do so.�<2> On appeal, he submits a statement,
presumably from a co-worker, dated November 24, 1998, whereby the
author/speaker contends that he(appellant) did not know that there
was an avenue for employment discrimination until he (author/speaker)
informed him (appellant) of the EEO process. In its statement on appeal,
the agency argues essentially that appellant knew or should have known
of his rights and responsibilities under EEO law, including all relevant
time requirements. In support of its contention, the agency provides
an affidavit from the EEO counselor in which he attests to the location
and substance of the agency's EEO posters. Specifically, the counselor
contends that such posters are visible to all employees and applicants
and contain all relevant time limits, addresses, and telephone numbers.
Additionally, the counselor bolsters the agency's position by testifying
that several employees in appellant's office have filed EEO complaints.
After weighing the evidence submitted by the parties, the Commission
finds that the agency's contention is credible. Therefore, we hold that
the second allegation was properly dismissed as violative of the time
restrictions contained within 29 C.F.R. �1614.105(a)(1).
Accordingly, the decision of the agency was proper and is, therefore,
AFFIRMED.
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:
September 3, 1999
_____________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 On appeal, the agency contends that its final decision was received
by appellant on November 17, 1998, and therefore, the EEOC appeal, filed
on December 18, 1998, is violative of the time requirements contained
within 29 C.F.R. �1614.402(a) and should be dismissed pursuant to 29
C.F.R. �1614.403(c). However, upon reviewing the file, the Commission
finds that the agency failed to include the return receipt as evidence
to support its position. As such, we hold that appellant's EEOC appeal
is timely.
2 See Letter from Simmons to Douglas of 10/29/98, at 1 (appellant does
not say who told him that he could not seek EEO counseling).