01990430_r
10-06-1999
William A. Taylor, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
William A. Taylor, )
Appellant, )
)
v. ) Appeal No. 01990430
) Agency No. 1H-326-0050-98
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. and Section 501 of the Rehabilitation Act of
1973, as amended, 29 U.S.C. �791 et seq. The final agency decision was
issued on October 7, 1998. The appeal was postmarked October 19, 1998.
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.
On May 21, 1998, appellant initiated contact with an EEO Counselor.
The EEO Counselor's Inquiry Report indicated that appellant underwent EEO
counseling on the issue that he was denied a bid job on March 20, 1998.
Informal efforts to resolve his concerns were unsuccessful.
On August 31, 1998, appellant filed a formal complaint, alleging that
he was the victim of unlawful employment discrimination on the bases
of sex, disability and reprisal. Therein, appellant raised the same
matter for which he underwent EEO counseling, discussed above. Moreover,
appellant stated that a white female agency employee on light/limited
duty status successfully bid on a window service position without having
to submit medical certification. On that portion of the complaint form
requesting that complainants provide the date on which the alleged
incident of discrimination occurred, a typewritten description of
�03/20/98" is entered.
On October 7, 1998, the agency issued a final decision, dismissing
appellant's complaint for failure to timely contact an EEO Counselor.
The agency found that the alleged discriminatory incident occurred on
March 20, 1998, and that appellant's initial EEO Counselor contact on May
21, 1998, was more than forty-five days after the alleged discriminatory
incident occurred.
On appeal, appellant argues that he only developed a reasonable suspicion
of unlawful employment discrimination on April 20, 1998. Appellant
specifically argues that on that date, an agency female employee was
permitted to begin training on a Window Service position for which she
had successfully bid, without having to furnish medical certification.
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 record in this case contains conflicting information on when appellant
developed a reasonable suspicion of unlawful employment discrimination.
The EEO Inquiry report reflects that appellant underwent EEO counseling
on the issue that he was denied a bid job on March 20, 1998, and the
formal complaint lists March 20, 1998, as the date that the alleged
discriminatory event occurred. On appeal, however, appellant argues
that he only developed a reasonable suspicion of unlawful employment
discrimination when he learned that a female employee was permitted to
start training for a window service job, without having to furnish medical
certification. Appellant further argues that because he became aware
of this matter on April 20, 1998, his initial EEO Counselor contact
was therefore timely. Given the present record, the Commission is
unable to ascertain when appellant developed a reasonable suspicion of
unlawful employment discrimination. Accordingly, the agency's decision
to dismiss appellant's complaint for failure to timely contact an EEO
Counselor is VACATED. Appellant's complaint is REMANDED to the agency
for further processing in accordance with the ORDER below.
ORDER
The agency is ORDERED to provide appellant with the opportunity to submit
the following information:
The exact information that appellant received that caused him to develop
a reasonable suspicion that he was subjected to discrimination, and the
date and manner in which he received this information.
Within fifteen (15) calendar days of the date that this decision becomes
final, the agency shall notify appellant that he has fifteen (15)
calendar days from the date of his receipt of the agency's notification
to provide the agency with the information on the issues listed above.
The agency shall have fifteen (15) calendar days from the date of its
receipt of appellant's response to issue a final decision or to notify
appellant that the agency is processing his complaint.
A copy of the agency's notice to appellant requesting the supplemental
information outlined above, as well as a copy of the new final agency
decision and/or notice of processing must be sent to the Compliance
Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
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 (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. 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:
October 6, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations