01976959
11-02-1998
Barry G. Prada, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (New York Metro and Northeast Areas) Agency.
Barry G. Prada v. United States Postal Service
01976959
November 2, 1998
Barry G. Prada, )
Appellant, )
) Appeal No. 01976959
v. ) Agency No. 4B-028-0069-97
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(New York Metro and )
Northeast Areas) )
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 (FAD) was issued on
August 20, 1997 and received by Appellant on August 22, 1997. The appeal
was postmarked September 22, 1997. Accordingly, the appeal is timely,
(See 29 C.F.R. � 1614.402(a)), and is accepted in accordance with EEOC
Order 960, as amended.
ISSUE PRESENTED
The issues on appeal are as follows:
Whether or not appellant contacted an EEO Counselor in a timely manner;
and
Whether or not appellant's complaint of sex discrimination fails to
state a claim upon which relief may be granted.
BACKGROUND
A review of the record reflects that on May 24, 1997, appellant
sought EEO pre-complaint counseling and on July 5, 1997 he filed his
formal complaint alleging that he had been the victim of unlawful sex
discrimination in violation of Title VII when he was investigated and
ultimately disciplined for misconduct associated with an allegation of
sexual harassment. In support of his claims, appellant further alleged
that female co-workers regularly engaged in the same conduct but were
not investigated nor disciplined.
On or about August 19, 1997, appellant became the target of an internal
investigation by representatives of the United States Postal Service
as a result of allegations of inappropriate physical contact made
against appellant by a co-worker. On or about September 19, 1996,
appellant met with members of the Labor Relations Division to discuss
the allegations which appellant considered at the time to be "horseplay"
between co-workers. During the investigation of appellant, he informed
the agency of similar conduct which had been engaged in by several female
co-workers and inquired as to why he was being singled out. Appellant
gave the investigators the names of female co-workers and specific
examples of behavior on their part which he asserted was similar to the
conduct for which he was being investigated. Donald Lavelle with the Labor
Relations Division assured appellant that the individuals identified by
appellant would also be investigated and disciplined if appropriate.
On or about October 24, 1996, appellant received a Notice of
Proposed Removal from the agency as a result of the aforementioned
investigation. Through the efforts of appellant's union representative, on
or about November 21, 1996, appellant entered into a settlement agreement
with the agency and the proposed removal was reduced to: (1) a thirty
(30) day suspension without pay; (2) a change in employment status from
full-time postal clerk to part-time postal clerk, resulting in loss
of pay and benefits; and (3) reassignment to another postal facility.
Appellant's 30-day suspension was effective December 21, 1996.
Appellant alleges that since approximately late-October, 1996,
he had been awaiting the outcome of the investigation of his female
co-workers. According to appellant, he did not receive any information
regarding the investigation until after his initial EEO contact.
The record also reveals that on April 8, 1997, appellant's attorney sent a
letter to Mr. Donald Lavalle, attempting to obtain a status report of the
investigation. Appellant further alleges that his attorney placed several
telephone calls to Mr. Lavalle with no response. Shortly thereafter,
on May 24 1997, appellant filed his initial informal EEO complaint.
On August 20, 1997, the agency issued its final decision and dismissed
appellant's complaint based on the following:(1) appellant's initial
contact with the EEO counselor was untimely; and(2) appellant's complaint
fails to state a claim upon which relief may be granted
For the reasons set forth below, the Commission AFFIRMS.
ANALYSIS AND FINDINGS
The FAD dismissed the complaint, inter alia, for untimely EEO contact.
It is not disputed that appellant first contacted an EEO Counselor on
May 24, 1997. It is also undisputed that appellant was aware of the
time limit to contact an EEO Counselor. Accordingly, the sole issue we
must decide is the date the 45-day time period for initiating contact
with an EEO Counselor commenced.
EEO Regulation 29 C.F.R. �1614.105(a)(1)requires that complaints of
discrimination be brought to the attention of an EEO Counselor within 45
days of the alleged discriminatory event, or the effective date of an
alleged discriminatory personnel action. The Commission has adopted a
"reasonable suspicion" standard (as opposed to a "supportive facts"
standard) to determine when the limitation period for contacting an
EEO Counselor is triggered under the applicable regulations. See Ball
v. USPS, EEOC Request No. 05880247 (July 6, 1988). The time period is
triggered as soon as a complainant reasonably suspects discrimination,
and the complainant may not wait until all supporting facts have become
apparent. Queener v. USPS, EEOC Appeal No. 01966745 (July 16, 1997).
In order to determine when the 45-day time period began, we must determine
when appellant reasonably suspected that he was treated differently from
his similarly situated female co-workers.
The record reflects and appellant asserts that on or about September 19,
1996, appellant met with investigators and produced information regarding
specific female employees involved in similar conduct and "specifically
wondered why he was being singled out for investigation." (Appellate
Statement pg. 1). Appellant was assured that his accusations would be
investigated.
On October 24, 1996, appellant received a Notice of Proposed Removal
charging him with engaging in inappropriate conduct and physical contact
in violation of Postal Service policy. Appellant's union representative
thereafter negotiated an agreement with the agency whereby, effective
December 21, 1996, appellant would receive a 30-day suspension and
subsequent voluntary reassignment in lieu of termination. Appellant,
thereafter, awaited the outcome of the investigation into his allegations
against female co-workers. Appellant heard nothing regarding the status
of the investigation which he believed to be ongoing. In early-April,
appellant, concerned that he had not heard from the investigators, asked
his attorney to contact them in writing. On April 8 1997, appellant's
attorney sent a letter to Donald Lavelle requesting information on
the status of the investigation and followed-up said letter with a few
telephone messages which were never returned by Mr. Lavelle.
Appellant contends that it was not until the agency failed to answer
his attorney's correspondence that appellant began to suspect that he
was the victim of discrimination. He states that he "put his faith in
the system which had diligently investigated charges made against him
and assumed that the investigators would act in a like manner to his
complaints." (Appellant's statement at pg. 2) Appellant further states
that he was not advised as to the status of the investigation of his
former female co-workers until after his initial EEO Counseling contact.
The agency argues that appellant should have had a reasonable suspicion
of discrimination on, October 24, 1996, the date that he received
the Notice of Proposed Removal. The agency also notes the fact that
appellant and his union representative entered into a voluntary Mutual
Agreement-Settlement on November 21, 1996 and suggests that the 45-day
time limitation could have commenced from this date or even the date the
suspension and reassignment became effective (December 21, 1996), both
of which make appellant's May 24, 1997 initial EEO contact untimely.
The Commission finds that appellant had a reasonable suspicion of
discrimination in September, 1996, when, by his own admission, appellant
"specifically wondered why he was being singled out for investigation."
See Shurley v. Treasury, EEOC Appeal No. 01973055 (July 10, 1998)
(holding that by the admission that appellant felt "singled out"
when asked for further evidence of her qualifications, the 45-day time
limit commenced on the day she was denied the position.) In addition,
appellant's statements in his complaint and appeal indicate that he
believed that his former female co-workers were under investigation for
a similar offense as early as September, 1996, and was waiting to see
whether they would be disciplined.
These facts demonstrate that appellant already had a reasonable suspicion
of discrimination at the time he requested that his female co-workers be
investigated and was merely seeking proof for his allegations. Senecal
v. USPS, EEOC Appeal No. 01954443 (October 4, 1995), citing Bracken
v. USPS, EEOC Request No. 05900065 (March 29, 1990)(finding untimely
EEO Counselor contact where appellant waited to initiate counseling
until her replacement was treated more favorably than she, even though
she suspected discrimination earlier) By appellant's own admissions, he
reasonably suspected discrimination at the time he was investigated and
ultimately disciplined. Appellant did not contact a Counselor at that
time, however, waiting instead until he had supportive facts or proof of
discrimination by showing that appellant's former female co-workers were
not investigated nor disciplined for the same conduct that he engaged in.
Bracken v. USPS, EEOC Request No. 05900065 (March 29, 1990).
For the reasons stated hereinabove, we find that the 45-day time limit
began, the latest, on December 21, 1998 (effective date of the suspension
and reassignment). Therefore, we hereby AFFIRM the FAD and accordingly,
do not reach the merits of the agency's second basis for dismissal on
the issue of failure to state a claim.
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 2, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations