William A. Taylor, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 6, 1999
01990430_r (E.E.O.C. Oct. 6, 1999)

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