01981931
03-10-1999
William R. Dever, Jr., Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
William R. Dever, Jr. v. United States Postal Service
01981931
March 10, 1999
William R. Dever, Jr., )
Appellant, )
)
v. ) Appeal No. 01981931
) Agency No. 4G-720-0244-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On December 30, 1997, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) received by him on December 18, 1997,
pertaining to his complaint of unlawful employment discrimination in
violation of the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. �621 et seq. In his complaint, appellant alleged
that he was subjected to discrimination on the bases of age (DOB 10/17/46)
and in reprisal for prior EEO activity when:
During the second week of February 1997, management advised appellant
that he would no longer be working overtime unless called in;
On an unspecified date appellant was moved from the Albert Pike Station
to the Main Office;
On an unspecified date appellant's overtime was reduced to zero;
On an unspecified date appellant was threatened regarding the abolishment
of his job and a change in reporting time; and
On August 28, 1997, appellant was removed from the Throwback Case as
it was alleged that he was throwing too slowly.
The agency accepted allegation (5) for investigation, dismissed
allegations (1) through (4) pursuant to EEOC Regulation 29
U.S.C. �1614.107(b), for failure to initiate contact with an EEO
Counselor in a timely manner, and, alternatively, dismissed allegation (4)
pursuant to 29 U.S.C. �1614.107(e), for alleging that a proposal to take a
personnel action, or other preliminary step to taking a personnel action,
was discriminatory. Specifically, the agency concluded that because the
actions identified in allegations (1) through (4) occurred in February
1997, more than forty-five days from appellant's September 3, 1997 initial
EEO Counselor contact, appellant's EEO Counselor contact was 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 limitations period
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
In the instant case the record discloses that the events identified
in allegations (1) through (4) occurred in the second week of February
1997, but that appellant did not initiate EEO counseling until September
3, 1997. As appellant offered no justification sufficient to extend
the time limit, we find that dismissal of allegations (1) through (4)
was proper.<1> Accordingly, the agency's decision is AFFIRMED for the
reasons set forth herein.
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. 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
Office of Federal Operations
1Since we are affirming the agency's dismissal of allegation (4) on the
grounds of untimely EEO Counselor contact, we will not address the agency's
alternative grounds for dismissal, i.e., that it alleged that a proposal to
take a personnel action was discriminatory.