01982002
03-10-1999
Jerome L. Bell, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Jerome L. Bell v. United States Postal Service
01982002
March 10, 1999
Jerome L. Bell, )
Appellant, )
)
v. ) Appeal No. 01982002
) Agency No. 1G-721-0013-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On January 14, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) received by him on December 31, 1997,
pertaining to 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 �501 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. �791 et seq. In his complaint, appellant alleged
that he was subjected to discrimination on the bases of race (Black)
and physical disability (knee injury)<1> when:
On January 14, 1997, appellant's supervisor refused to accept appellant's
CA-17 form; and
Since June 1996, appellant was threatened with losing his job, his
medical records were moved, and he was told not to talk to certain
other employees.
The agency accepted allegation (1) for investigation and dismissed
allegation (2) pursuant to EEOC Regulation 29 U.S.C. �1614.107(b), for
failure to initiate contact with an EEO Counselor in a timely manner.
Specifically, the agency determined that appellant's January 21, 1997
initial EEO Counselor contact occurred more than forty-five (45) days
from the date of the alleged discrimination identified in allegation
(2) and was, therefore, untimely.
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 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.
In the instant case, we find that the agency erred in dismissing
allegation (2) for untimely EEO Counselor contact. In allegation (2),
appellant alleged that since June 1996, he was threatened with losing
his job, his medical records were moved, and he was told not to talk
to certain other employees. Thus, we find that instead of tolling the
forty-five (45) day limitation period from June 1996, the agency should
have determined the most recent date(s) on which appellant was subjected
to such treatment, and tolled the limitation period from that point.
EEOC Regulation 29 C.F.R. �1614.106(c) provides that a complaint must
contain a statement that is sufficiently precise to describe generally
the actions or practices that form the basis of the complaint. We find
that appellant's vague assertion that these matters occurred on a
daily basis is insufficiently precise to satisfy the requirements of 29
C.F.R. �1614.106(c). However, because the record in this case does not
contain this information, we must remand the matter back to the agency
for further investigation.
Accordingly, the agency's decision to dismiss allegation (2) is hereby
VACATED. Allegation (2) is REMANDED to the agency for further processing
in accordance with this decision and the Order below.
ORDER
The agency is ORDERED to take the following actions:
Within fifteen (15) calendar days of the date this decision becomes
final, the agency shall send appellant a letter requesting information
concerning the dates of the most recent occurrences of the type of
treatment identified in allegation (2). The letter shall inform
appellant that he is to respond with the relevant information within
fifteen (15) calendar days of its receipt, or the allegation would be
dismissed pursuant to 29 C.F.R. �1614.107(g).
Within sixty (60) calendar days of the date this decision becomes final,
the agency shall issue appellant a notice of processing and/or new FAD
concerning the matters identified in allegation (2).
A copy of the agency's letter requesting the necessary information,
and notice of processing and/or new FAD regarding allegation (2) 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:
March 10, 1999
____________________________
DATE Ronnie Blumenthal, Director
1The Commission notes that appellant did not initially include physical
disability as a basis for his complaint. However, by letter dated
February 11, 1998, appellant requested that physical disability be added as
a basis for his complaint. As the Commission has held that a complainant
may allege discrimination on all applicable bases, including sex, race,
national origin, color, religion, age, disability and reprisal, and may
amend his or her complaint at any time, including at the hearing, to add or
delete bases without changing the identity of the claim, we will include
physical disability as a basis for the instant complaint. See Sanchez v.
Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970); Dragos v. United
States Postal Service, EEOC Request No. 05940563 (January 19, 1995).