01a22891
08-20-2002
Daniel R. Taylor, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Daniel R. Taylor v. United States Postal Service
01A22891
August 20, 2002
.
Daniel R. Taylor,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A22891
Agency No. 1I-641-0053-01
DECISION
Upon review, the Commission finds that the agency's decision dated
April 4, 2002, dismissing complainant's complaint due to untimely EEO
Counselor contact is proper pursuant to 29 C.F.R. � 1614.107(a)(2).
In his complaint, complainant alleged that on May 1, 2001, he received
a letter indicating that he had been charged with FMLA that he had not
requested for time he was recovering from surgery related to a job-related
injury while others who were recovering from job-related surgery were
not charged with FMLA.
The Commission has adopted a �reasonable suspicion� standard (as opposed
to a �supportive facts� standard) to determine when the limitation period
is triggered under the EEOC Regulations. See 29 C.F.R. � 1614.105(a)(2);
Ball v. United States Postal Service, EEOC Request No. 05880247 (July 6,
1988). Thus, the limitations period is not triggered until a complainant
reasonably should have suspected discrimination, but before all the
facts that would support a charge of discrimination have become apparent.
The record indicates that complainant contacted an EEO Counselor with
regard to his complaint on August 22, 2001, which was beyond the 45-day
time limit set by the regulations. In his complaint, complainant
indicated that on August 16, 2001, he contacted a female coworker who
advised him that she had not been designated or requested to be charged
with FMLA status while she was off for surgery/recovery. On appeal,
complainant contends that he did not become aware of discrimination
until August 16, 2001. However, complainant does not provide any
evidence as to why he waited until August 16, 2001, to inquire about the
alleged matter. Furthermore, the record indicated that on June 12, 2001,
complainant previously filed a grievance concerning the subject matter.
Based on the foregoing, the Commission finds that complainant reasonably
should have suspected discrimination on or before June 12, 2001. Thus,
the Commission finds that complainant's August 22, 2001 EEO Counselor
with regard to his complaint was untimely.
Accordingly, the agency's decision is AFFIRMED.<1>
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 20, 2002
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1Although the agency dismissed the complaint on the alternative ground
for failure to state a claim, we need not discuss such in this decision
since the dismissal is affirmed due to untimely EEO Counselor contact.