Wayne Gordon, Sr., Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 22, 1999
01992335 (E.E.O.C. Oct. 22, 1999)

01992335

10-22-1999

Wayne Gordon, Sr., Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Wayne Gordon, Sr. v. United States Postal Service

01992335

October 22, 1999

Wayne Gordon, Sr., )

Appellant, )

)

v. ) Appeal No. 01992335

) Agency No. 4-G-770-0022-99

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

Appellant filed an appeal with this Commission from a final decision of

the agency concerning 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. The final agency decision was received by

appellant on January 13, 1999. The appeal was postmarked January 29,

1999. Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)),

and is accepted in accordance with EEOC Order No. 960, as amended.

Appellant contacted an EEO counselor on September 15, 1998. Specifically,

appellant alleged that he was discriminated against when on September 9,

1998 he was forced to give up his rotating days off. Informal efforts

to resolve appellant's concerns were unsuccessful. On November 3, 1998,

appellant filed a formal complaint alleging that he was the victim of

unlawful employment discrimination on the basis of reprisal (prior EEO

activity). Appellant's complaint was comprised of the matter for which

he underwent EEO counseling, discussed above.

On January 7, 1999, the agency issued a final decision dismissing

appellant's complaint for untimely contact with an EEO Counselor.

The agency acknowledged that appellant alleged that he first developed a

reasonable suspicion of unlawful employment discrimination on September

9, 1998. However, the agency determined that appellant had, or should

have had, a reasonable suspicion of unlawful employment discrimination

well before that date. Specifically, the agency determined that in March

1997, appellant accepted a limited duty assignment in Beaumont, Texas,

with fixed days off, and that he had, or should have had, a reasonable

suspicion of unlawful employment discrimination when so informed.

The agency asserts that appellant's September 15, 1998 contact with the

EEO office concerning his days off was well beyond the applicable time

period for EEO Counselor contact.

On appeal, appellant contends without elaboration that he "was able to

file this case only after [he] became aware of the incident."

The record in this case contains a letter to appellant dated March

25, 1997. Therein, the agency apprised appellant of his limited duty

work schedule, which specifically indicated that his off days would be

Sunday and Thursday, effective March 29, 1997.

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 limitations period

is not triggered until a complainant reasonably suspects discrimination,

but before all the facts that support a charge of discrimination have

become apparent.

The Commission finds that the agency's final decision dismissing

appellant's complaint on the grounds of untimely EEO Counselor contact

is proper, pursuant to the provisions of 29 C.F.R. �1614.107(b).

The record shows that appellant sought EEO counseling on September 15,

1998, alleging that he had been discriminated against on the basis

of reprisal when he was forced to give up his rotating days off.

Appellant noted that the alleged discriminatory incident occurred on

September 9, 1998. The record, however, reveals that appellant accepted

a limited duty assignment beginning on March 29, 1997, with Sunday

and Thursday as fixed days off. The agency found that by contacting

an EEO Counselor on September 15, 1998, appellant had failed to seek

counseling within the 45-day time frame provided by EEOC Regulation

29 C.F.R. �1614.105(a)(1). Appellant has failed to present adequate

justification pursuant to 29 C.F.R. �1614.105(a)(2), for extending the

limitation period beyond forty-five days. Accordingly, the agency's

decision to dismiss appellant's complaint for failure to initiate contact

with an EEO Counselor in a timely fashion was proper and is 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:

10/22/1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations