01a00198
03-09-2000
Earl McDaniels Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (S.E./S.W. Areas), Agency.
Earl McDaniels )
Complainant, )
)
v. ) Appeal No. 01A00198
) Agency No. 1H-381-0041-99
William J. Henderson, )
Postmaster General, )
United States Postal Service )
(S.E./S.W. Areas), )
Agency. )
____________________________________)
DECISION
The Commission finds that the agency's July 22, 1999 decision dismissing
the complaint on the grounds of untimely EEO counselor contact is proper
pursuant to 64 Fed. Reg. 37, 644, 37, 656 (1999)(to be codified and
hereinafter referred to as 29 C.F.R. � 1614.107(b)).
The record shows that complainant sought EEO counseling on April 17,
1999, alleging that he had been discriminated against on the bases of race
(Black), and mental disability (stress), when on September 20, 1998, his
supervisor changed his PS Form 3971 without his knowledge or consent.
The record also reveals that on April 17, 1999, complainant also agreed
to participate in an Alternate Dispute Resolution Process. By letter
dated April 30, 1999, however, the agency determined that the complaint
should not be mediated, and should be processed through the traditional
EEO process.
Complainant subsequently filed a formal complaint on June 28, 1999.
The agency issued a final decision dismissing the complaint on the grounds
of untimely EEO counselor contact. The agency noted that complainant
contacted an EEO counselor 150 days after the incident in question.
On appeal, complainant complains about the agency's processing of his
EEO complaint. The agency requests that we affirm the FAD.
64 Fed. Reg. 37, 644, 37656 (1999)(to be codified and hereinafter
referred to as 29 C.F.R. � 1614.105 (a) (1)) requires that complaints of
discrimination be brought to the attention of the EEO Counselor within
45 days of the alleged discriminatory event, or the effective date of
an alleged discriminatory personnel action. The Commission applies a
"reasonable suspicion" standard to the triggering date for determining
the timeliness of the contact with an EEO counselor. Cochran v. United
States Postal Service, EEOC Request No. 05920399 (June 18, 1992).
Under this standard, the time period for contacting an EEO counselor is
triggered when the complainant should reasonably suspect discrimination,
but before all the facts that would support a charge of discrimination
may have become apparent. Id.
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.
A review of the instant complaint shows that complainant does not claim
that he was unaware of his EEO rights or that he was unaware of EEO
applicable time limits. The record reveals complainant filed a union
grievance sometime in October 1998. The grievance was resolved at Step 2
on March 15, 1999. Complainant, however, did not contact an EEO Counselor
in the matter until April 1999. We also note that complainant's EEO
Counselor contact was late, despite his attempt to mediate his complaint.
Complainant failed to present any persuasive argument or evidence as
to why we should extend the time limits in this case. Accordingly,
the final agency decision is AFFIRMED.
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:
March 9, 2000
Date
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations