William D. Martin, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service (S.E./S.W. Areas) Agency.

Equal Employment Opportunity CommissionFeb 8, 2000
01a00787 (E.E.O.C. Feb. 8, 2000)

01a00787

02-08-2000

William D. Martin, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (S.E./S.W. Areas) Agency.


William D. Martin, )

Complainant, )

)

v. ) Appeal No. 01A00787

) Agency No. 1H-302-0019-99

William J. Henderson, )

Postmaster General, )

United States Postal Service )

(S.E./S.W. Areas) )

Agency. )

____________________________________)

DECISION

On October 20, 1999, complainant filed a timely appeal with this

Commission from a final agency decision (FAD) pertaining to his complaint

of unlawful employment discrimination in violation of the Title VII of

the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;

the Age Discrimination in Employment Act of 1967 (ADEA), as amended,

29 U.S.C. � 621 et seq.; and the Rehabilitation Act of 1973, as amended,

29 U.S.C. � 791, et seq.<1> In his complaint, complainant alleged that

he was subjected to discrimination on the basis of race (Caucasian), age

(49) and physical disability(left foot impairment), when, on July 26,

1996, he was informed by a union representative that he would not be

awarded a job as a forklift driver event though he filed a grievance

on the matter. The appeal is accepted in accordance with EEOC Order

No. 960.001. For the following reasons, the Commission AFFIRMS the

agency's final decision.<2>

Complainant alleged in his complaint that the agency's Injury

Compensation Specialist colluded with the union when it decided not to

settle complainant's grievance concerning his bid for a forklift driver

position. The EEO Counselor's report also indicates that an interview

could not be held with complainant within the thirty day time limit,

and complainant refused to extend the time limits.

On September 22, 1999, the agency dismissed the complaint pursuant to EEOC

Regulation 29 C.F.R. � 1614.105(a)(1), for failure to make timely contact

with an EEO counselor in that he made EEO contact with an EEO Counselor on

September 25, 1998 for an incident he claimed occurred in July 1996, and

failed to provide any explanation for his three year delay. The agency

also dismissed his complaint pursuant to 29 C.F.R. � 1614.107(a) for

failure to state a claim. Specifically, the agency determined that

complainant failed to demonstrate that he suffered direct and personal

deprivation as a result of any agency action. The agency also found

complainant was using the EEO process to lodge a collateral attack on

another forum's processing.

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. United States Postal Service,

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 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. 29 C.F.R. � 1614.105(a)(2).

In the instant case, a review of the EEO Counselor's Inquiry report

provided by the agency reveals that complainant initiated contact with

an EEO Counselor on September 25, 1998, significantly more than 45 days

after July 26, 1996, which was the date cited by complainant as the

date he was informed that he would not be awarded the job. On appeal,

complainant, through his representative complains about the processing

of his complaints.

After a review of the record, however, the Commission finds that

complainant failed to provide any persuasive evidence or argument why

we should extend the time requirements in this case.

Accordingly, the Commission AFFIRMS the agency's final decision.<3>

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish 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.

Requests to reconsider, with supporting statement or brief, MUST BE FILED

WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR

DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS

OF RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.405). All requests and arguments must 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

timely filed if it is received by mail within five days of the expiration

of the applicable filing period. See 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.604).

The request or opposition must also include proof of service on the

other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

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. If you

file a request to reconsider and also file a civil action, filing a civil

action will terminate the administrative processing of your complaint.

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:

February 8, 2000

DATE

Carlton

M.

Hadden,

Acting

Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_________________________

Equal Employment Assistant

__________________________

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.

2The Commission takes notice that complainant filed at least thirteen

complaints on the same day. The Commission cautions complainant that

it retains the right to protect its processes and procedures from

misuse and abuse. However, at present, the Commission will not find

that complainant is abusing its processes. See Kessinger v. USPS, EEOC

Request No. 05970408 (May 30, 1997); Kleinman v. USPS, EEOC Request

No. 05940579 et al. (September 22, 1994); Hooks v. USPS, EEOC Appeal

No. 01953852 et al. (November 28, 1995).

3Since we have found complainant failed to make timely EEO contact, we

will not address the agency's finding that the complaint also failed to

state a claim.