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.