0120111534
07-25-2011
Kevin J. Sullivan, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Kevin J. Sullivan,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120111534
Agency No. 4H320000611
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision (Dismissal) dated January 24, 2011, dismissing his complaint of
unlawful employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Postmaster at the Agency’s Post Office facility in New Smyrna
Beach, Florida.
On January 3, 2011, Complainant filed a formal complaint alleging that the
Agency subjected him to discrimination on the bases of race (Caucasian),
sex (male), religion (Catholic), and color (White) when:
on August 6, 2009, Complainant was issued a letter of debt in the amount
of $5,268.71.
The Agency dismissed the claim for untimely EEO Counselor contact
and for failure to state a claim. The Agency found that the alleged
discriminatory act occurred in August 2009, but Complainant did not
contact a Counselor until October 8, 2010, which is beyond the 45-day
regulatory limit. The instant appeal followed.
ANALYSIS AND FINDINGS
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 Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). 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.
It is undisputed that Complainant did not initiate contact with an EEO
counselor until over one year from his receipt of the August 2009 letter
of debt. This was well beyond the 45-day limitation period prescribed
by regulation.
Complainant argues, in part, that his delay should be excused because
he has been pursuing his rights to request a debt hearing and stop
the collection process. However, the Commission has consistently
held that the utilization of agency procedures, union grievances, and
other remedial processes does not toll the time limit for contacting an
EEO Counselor. See Ellis v. United States Postal Service, EEOC Appeal
No. 01992093 (November 29, 2000). Complainant also contends that he
was not sure he was discriminated against until he became aware, on
October 8, 2010, that another female Postmaster at another facility had
a similar debt “wiped away” while Complainant is still contesting his
indebtedness with the Agency. However, we also find that the discovery of
this subsequent comparator, without more, is insufficient to conclude that
Complainant did not reasonably suspect discrimination at an earlier date.
Rather, the evidence of this comparator is simply further support for
Complainant’s claim.
Accordingly, for the reasons provided above, we AFFIRM the Agency’s
Dismissal for untimely EEO Counselor contact.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
July 25, 2011
__________________
Date
2
0120111534
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120111534