01980724
11-10-1998
Ambert A. Elomina, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Ambert A. Elomina, )
Appellant, )
)
v. ) Appeal No. 01980724
) Agency No. 4F-967-1018-96
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency 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. The final agency decision was issued on
July 16, 1997. The appeal was received by the Commission on November
4, 1997. Accordingly, the appeal is considered timely<1> (see 29
C.F.R. �1614.402(a)), and is accepted in accordance with EEOC Order
No. 960, as amended.
The record reflects that appellant was a Letter Carrier at the agency's
Guam Main Facility in Barrigada, Guam. On December 22, 1995, appellant
was terminated during his probationary period of employment.
On April 9, 1996, appellant filed a formal complaint, alleging that he
was the victim of unlawful employment discrimination on the basis of
race, when he was terminated. On July 23, 1996, the agency issued a
final decision, dismissing appellant's complaint for failure to timely
contact an EEO Counselor. The agency found that appellant initiated
contact with an EEO Counselor on February 26, 1996, more than forty-five
days after his termination on December 22, 1995.
On appeal, appellant argued that the agency incorrectly determined
that his initial EEO Counselor contact occurred on February 26, 1996.
Appellant enclosed copies of telephone bills for the period January
10, 1996, through March 12, 1996. Appellant argued that these bills
"clearly indicate that [he] filed the complaint on January 10, 1996,"
since two calls to the same number and the same destination in Puuloa,
Hawaii were made on that date. The phone bill copies also contained
six entries to a separate number in Puuloa, Hawaii, on February 6, 9,
13, 21, and 27, 1996, with the handwritten notation "EEO Hawaii."
The Commission found that it was unable to ascertain from the record
whether appellant's initial EEO contact occurred on January 10, 1996,
as he alleged on appeal, or on February 26, 1996, as determined by
the agency. The agency's decision to dismiss appellant's complaint
was vacated, and appellant's complaint was remanded to the agency. The
Commission ordered the agency to conduct a supplemental investigation to
determine appellant's initial EEO Counselor contact date. The Commission
specifically ordered the agency to indicate whether the telephone numbers
identified by appellant belong to the agency's EEO office; to obtain
statements from employees of the EEO Office indicating whether they were
contacted by appellant; and to obtain any other relevant information
regarding appellant's EEO contact. The agency was also ordered to
issue a final agency decision or notify appellant that the agency was
processing her complaint. Elomina v. USPS, EEOC Appeal No. 01966177
(June 23, 1997).
On July 16, 1997, the agency issued a final decision that is the
subject of the instant appeal. Therein, the agency again dismissed
appellant's complaint for failure to initiate timely EEO Counselor
contact. The agency stated that a supplemental investigation had
been conducted, in accordance with the Commission's Order of June 23,
1997. Relying upon an affidavit dated June 30, 1996, and prepared by
an agency EEO Counselor/Investigator, the agency found that the EEO
Counselor/Investigator stated that during the period January 10, 1996,
through March 12, 1996, she was assigned to the agency EEO Office in
Honolulu, Hawaii; and that her telephone number has, since 1993, been
the same. The agency further found that appellant called a different
number; and that this number used to be the number for the "telephone
center" in Honolulu, Hawaii.<2> Moreover, the agency found that if
appellant had telephoned the "telephone center," his call would have
been forwarded to the extension of the EEO Counselor/Investigator, once
the "telephone center" was aware of the nature of appellant's call.
Finally, the agency found that records disclosed that no calls were
forwarded to the EEO Counselor/Investigator from the "telephone center;"
that if any telephone calls had been forwarded to the EEO Counselor
Investigator, he would have referred appellant to the phone number
for the Northern California EEO Processing Center; and that the record
disclosed that appellant's call was not forwarded to the office of the
EEO Counselor/Investigator.
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.
The Commission determines that the agency properly found that appellant's
initial EEO Counselor contact was untimely. Appellant's complaint
addresses his termination from agency employment on December 22, 1995.
The record reflects that, within the forty-five day period that followed
his December 22, 1995 termination, appellant made two calls to an agency
telephone number at an agency "telephone center" in Hawaii, on January
10, 1996. However, the record contains the testimony of an agency EEO
official who stated that the two calls made to an agency "telephone
center" in Honolulu would have been forwarded to an EEO Counselor once
the "telephone center" had been aware of the nature of appellant's calls.
The EEO official stated that appellant's calls were not forwarded to
the office of EEO Counselor in January 1996. The record, moreover,
reflects that appellant made numerous telephone calls to the agency
following the expiration of the forty-five day limitation period, in
February 1996. Appellant has not, however, provided any explanation
for the delay between the time he called the agency "telephone center"
in January 1996, and his subsequent telephone calls to the agency in
February 1996. Appellant failed to present adequate justification
pursuant to 29 C.F.R. �1614.105(a)(2), for extending the limitation
period beyond forty-five days. Accordingly, the agency's decision to
dismiss appellant's complaint for failure to initiate contact with an
EEO Counselor in a timely fashion was proper and 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:
Nov. 10, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations1 The
dismissal of a complaint or a portion
of a complaint may be appealed to the
Commission within thirty (30) calendar
days of the date of the complainant's
receipt of the dismissal or final
decision. See 29 C.F.R. �1614.402(a).
Because the agency failed on appeal
to supply a copy of the certified
mail receipt or any other material
capable of establishing that date, the
Commission presumes that the appeal was
filed within thirty (30) calendar days
of the date of appellant's receipt
of the final decision.
2 In her June 30, 1996 affidavit, the EEO Counselor/Investigator stated
that the "telephone center" had been "recently" dismantled and that all
telephone calls were thereafter forwarded to Denver, Colorado.