Benjamin Godwin, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Northeast Area) Agency.

Equal Employment Opportunity CommissionFeb 9, 2001
01a10243godwin (E.E.O.C. Feb. 9, 2001)

01a10243godwin

02-09-2001

Benjamin Godwin, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Northeast Area) Agency.


Benjamin Godwin v. Postal Service

01A10243

February 9, 2001

.

Benjamin Godwin,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

(Northeast Area)

Agency.

Appeal No. 01A10243

Agency No. 4B0600162

DECISION

Complainant filed a timely appeal with this Commission from an agency

final decision (FAD) dated September 28, 2000, dismissing his complaint

of unlawful employment discrimination in violation of Section 501 of the

Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �

791 et seq.<1> In his complaint, complainant alleged discrimination based

on disability when he was removed from his position as a Mail Handler.

The agency dismissed the complaint pursuant to 29 C.F.R. �

1614.105(a)(2),<2> noting that complainant did not initiate contact with

an EEO counselor until July 20, 2000, more than 45 days after the date

of the alleged act of discrimination, i.e., May 6, 1989, the effective

date of complainant's removal. On appeal, complainant alleges that he

did not know until he received a letter dated June 13, 2000, from the

Civil Rights Division of the U.S. Department of Justice, that he could

file a discrimination complaint.

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 45 days of the date of the matter alleged

to be discriminatory or, in the case of a personnel action, within 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 45 day limitation period is triggered.

See Howard v. Department of the Navy, EEOC Request No. 05970852

(February 11, 1999). The limitations period begins to run when a person

with reasonably prudent regard for his/her rights knew or should have

known that he/she was being discriminated against. Reeb v. Economic

Opportunity of Atlanta, Inc., 516 F.2d 924, 931 (5th Cir. 1975). 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. Waiting until one has supporting

facts or proof of discrimination before initiating a complaint can result

in untimely counselor contact. Bracken v. USPS, EEOC Request No. 05900065

(March 29, 1990).

EEOC Regulations also provide that the agency or the Commission shall

extend the time limits when the individual shows that he/she was

not notified of the time limits and was not otherwise aware of them,

that he/she did not know and reasonably should not have known that the

discriminatory matter or personnel action occurred, that despite due

diligence he/she was prevented by circumstances beyond her control from

contacting the Counselor within the time limits, or for other reasons

considered sufficient by the agency or the Commission.

Upon review, the Commission finds that complainant's complaint was

properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely

EEO contact. The Commission recognizes that complainant waited more than

eleven years beyond the 45-day limitation period to raise his allegation

with an EEO Counselor. We have consistently held that complainants must

act with due diligence in the pursuit of their claims and that failure

to do so may result in dismissal of the claims under the doctrine of

laches. See O'Dell v. Department of Health and Human Services, EEOC

Request No. 05901130 (December 27, 1990); see also, Office of Federal

Operations' decisions: Thomas v. Department of the Treasury, EEOC Appeal

No. 01A00891 (August 23, 2000)(complaint dismissed for failure to act

with due diligence where complainant failed to contact an EEO Counselor

until more than five years after the allegedly discriminatory incident);

Firouzi v. United States Information Agency, EEOC Appeal No. 01992279

(May 5, 2000) (agency failed to provide sufficient evidence to support

application of constructive notice rule, but complaint still dismissed for

failure to act with due diligence where complainant failed to contact an

EEO Counselor until almost twenty years after the allegedly discriminatory

incidents); Kane v. Air Force, EEOC Appeal No. 01956766 (August 19,

1996) (complaint dismissed for failure to act with due diligence,

despite the fact that the agency may have misled complainant concerning

his EEO rights, where complainant contacted an EEO Counselor more than

five years from the date of the allegedly discriminatory incident and

from the date he received the allegedly misleading information).

CONCLUSION

Complainant did not initiate contact with an EEO Counselor until July

20, 2000, more than eleven years beyond the 45 day limitation period.

On appeal, no persuasive arguments or evidence have been presented to

warrant an extension of the time limit for initiating EEO contact.

Accordingly, the agency's final decision dismissing complainant's

complaint is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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), 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 19848,

Washington, D.C. 20036. 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 (S0900)

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 (Z1199)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

February 9, 2001

Date

1 The Rehabilitation Act was amended in 1992 to apply the standards in

the Americans with Disabilities Act (ADA) to complaints of discrimination

by federal employees or applicants for employment.

2 On November 9, 1999, revised regulations governing the EEOC's

federal sector complaint process went into effect. These regulations

apply to all federal sector EEO complaints pending at any stage in

the administrative process. Consequently, the Commission will apply

the revised regulations found at 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.