01981930
03-02-1999
Marston Schultz, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency
Marston Schultz v. United States Postal Service
Marston Schultz, )
Appellant, )
) Appeal No. 01981930
v. ) Agency No. 4F-940-0177-97
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency )
)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision concerning 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 the Age Discrimination in Employment Act of
1967, as amended, 29 U.S.C. �621 et seq. The final agency decision was
dated December 4, 1997 and received by appellant on December 8, 1997.
The appeal was postmarked January 2, 1998. Accordingly, the appeal is
timely (see 29 C.F.R. �1614.402(a)), and is accepted in accordance with
EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint for untimely contact with an EEO Counselor.
BACKGROUND
Appellant filed a formal complaint of discrimination on September 22,
1997, alleging discrimination on the bases of race (white), age (55) and
retaliation (prior EEO activity) when he was denied documents he claimed
to need in order to properly pursue a grievance he had filed in connection
with a Notice of Suspension. The agency characterized the discriminatory
event as the Notice of Suspension that was issued to appellant on April
7, 1997. The appellant, however, claimed that he did not suspect that
discrimination was behind the suspension and the withholding of documents
until July 31, 1997, the date that he says he contacted an EEO Counselor
about the matter. In its final agency decision, the agency dismissed
appellant's claim on the grounds that he had not timely contacted an EEO
Counselor about the alleged discrimination because more than 45 days had
elapsed between April 7, 1997 and July 31, 1997. This appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved
person must initiate contact with an EEO Counselor within 45 days of
the date of the matter alleged to be discriminatory or within 45 days of
the effective date of the personnel action. The Commission has adopted
a "reasonable suspicion" standard (as opposed to a "supportive facts"
standard) for determining whether contact with an EEO Counselor is timely.
Ball v. U.S. Postal Service, EEOC Request No. 05880247 (July 6, 1988).
Under this standard, the regulatory limitations period "is not triggered
until complainant reasonably suspects discrimination, but before all the
facts that would support a charge of discrimination have become apparent."
Bracken v. U.S. Postal Service, EEOC Request No. 05900065 (March 29,
1990).
In his appeal, appellant claims that he did not reasonably suspect that he
was suspended for discriminatory reasons until he discovered information
at a step 2 grievance meeting held on July 31, 1997. His appeal states
that he requested counseling for events that happened "that same day
7/31/97" because that was "when he first felt the discipline he had
received and the information being denied his representative was being
done for discriminatory reasons." Appellant claims to have developed
his reasonable suspicion on July 31, 1997, and to have raised this issue
with the EEO Counselor during the counseling sessions, and that therefore
his contact with the counselor is timely.
According to documents provided by the agency, however, appellant's
first contact with an EEO Counselor came in the form of a handwritten
letter requesting counseling. This letter was received by the Northern
CA EEO Complaints Processing Center on July 31, 1997, the date appellant
is claiming he first contacted an EEO Counselor, but the postmark on
the envelope indicates that he mailed it on July 29, 1997 (the date
on the actual letter is illegible). Therefore, the appellant had not
yet received the information that aroused his "reasonable suspicion"
at the time he decided to contact the EEO Counselor. Appellant's July
1997 handwritten letter requesting counseling and his EEO Request for
Counseling form, received by the EEO Counselor on August 27, 1997, each
seem to characterize the appellant's complaint as two separate issues:
(1)the suspension, and (2) the refusal to provide requested documents;
neither specify a date for the discriminatory event.
Appellant's formal complaint of discrimination re-characterizes the
discrimination to encompass only the denial of information requests,
and specifies the date of the discriminatory event as July 31, 1997.
He also alludes to "actions taken against me on or about July 17, 1997
by USPS management" but no further information is provided about this
in his complaint or appeal.
Appellant's representative, in his statement supporting the appeal of
the agency's decision, claims three areas of discrimination: "1.) the
denial of info[r]mation on 7/31/97; 2.) the disciplinary action; and
3.) the reprisal."
On the issue of the denial of information requests, we find that this
allegation constitutes a collateral attack on the grievance process.
The Commission has held that an employee cannot use the EEO complaint
process to lodge a collateral attack on another proceeding. Kleinman
v. USPS, EEOC Request No. 05940585 (September 22, 1994); Lingad v. USPS,
EEOC Request No. 05930106 (June 24, 1993). The proper forum for appellant
to raise challenges to actions which occurred during the grievance
process was in that process itself, which it seems from appellant's
statement in support of his appeal that he did. Therefore, appellant
has failed to state a claim under 29 C.F.R. �1614.107(a).
On the issue of the suspension, we find that the agency properly
dismissed the complaint for untimely contact with an EEO Counselor
as more than 45 days elapsed between the April 4, 1997 Notice of
Suspension and the initial letter to the EEO counselor sent on July
29, 1997. The appellant claimed that he did not have reasonable
suspicion that he had been discriminated against until July 31, 1997.
The Commission finds, however, that the appellant should have known,
or should have suspected, that discrimination was behind the Notice
of Suspension upon its issuance. This is true in light of appellant's
statement on his EEO Request for Counseling Form, dated August 24, 1997,
that he was alleging retaliation "because all of them [his supervisors]
have been involved with the continuing discrimination against me since
[my] 1990 EEO complaint." If there were continuing discrimination,
as he claimed, then the issuance of the Notice of Suspension should
have aroused appellant's suspicion, and he was then obligated to go
to an EEO Counselor within 45 days. Additionally, appellant made his
initial EEO contact through the letter he sent requesting counseling,
which was postmarked July 29, 1997. This conflicts with his claim that he
received information arousing his reasonable suspicion on July 31, 1997.
Therefore, appellant's contact with an EEO Counselor was untimely with
respect to the Notice of Suspension, under 29 C.F.R. �1614.107(b).
Accordingly, for the reasons stated above, the decision of the agency
is AFFIRMED.
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 (S0993)
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. 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 (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:
Mar 2, 1999
______________ ___________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations