Bryant F. Blackmon, Jr., Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionDec 10, 1999
01990570 (E.E.O.C. Dec. 10, 1999)

01990570

12-10-1999

Bryant F. Blackmon, Jr., Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Bryant F. Blackmon, Jr., )

Complainant, )

)

v. )

) Appeal No. 01990570

William J. Henderson, ) Agency No. 4-H-370-0141-98

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION

On October 24, 1998, complainant filed a timely appeal with this

Commission from a final agency decision (FAD), dated September 24,

1998, dismissing his complaint for untimely counselor contact.<1> The

Commission accepts the appeal in accordance with EEOC Order No. 960,

as amended.

On May 1, 1998, complainant contacted the EEO office regarding claims

of discrimination based on race (African American), physical disability

(back), and age (51). Informal efforts to resolve complainant's concerns

were unsuccessful. Accordingly, on July 14, 1998, complainant filed a

formal complaint.

The agency issued a FAD dismissing complainant's complaint for untimely

counselor contact. The FAD framed complainant's claim as follows: On

May 1, 1998 complainant became aware that he was treated differently

in the rehabilitation job offer made to him and was forced to accept

in March 1995. The agency indicated that the alleged discriminatory

event occurred in March 1995, but that complainant did not contact

the EEO counselor until 1,095 days later. The agency determined that

complainant knew or should have known about the time limitations from

EEO posters on display at his workplace and from the EEO information

provided during training for new employees.

On appeal, with regard to timeliness, complainant argues that he recently

discovered local post office management treated others differently.

Further, he contends that his medication often keeps his �mind altered.�

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 Howard v. Department of the Navy,

EEOC Request No. 05970852 (February 11, 1999). 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.

EEOC Regulations provide that the agency or the Commission shall extend

the time limits when the individual shows that she was not notified of the

time limits and was not otherwise aware of them, that she did not know

and reasonably should not have known that the discriminatory matter or

personnel action occurred, that despite due diligence 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.

In the instant case, the Commission finds that complaint should have

reasonably suspected discrimination more than forty-five days before

his initial EEO Counselor contact on May 1, 1998. The record contains a

copy of a letter, dated February 3, 1998, to complainant's Congressional

representative. Therein, complainant stated that �[t]his pertains to the

ongoing discrimination problems I am experiencing at my work place.�

Complainant described his claim and notes that he is �considering

filing an EEO complaint....� Therefore, we find that complainant was

aware of the alleged discrimination more than forty-five days prior

to contacting the EEO office. Moreover, complainant does not contend

that he was unaware of the time limitation. Accordingly, we find that

complainant's contact was untimely and no sufficient reason for extending

the time limitation has been provided. The agency's decision to dismiss

the complaint was proper and is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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 (S1199)

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 (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:

December 10, 1999

____________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________ _____________________________

Date Equal Employment Assistant

1On 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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

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

Commission's website at WWW.EEOC.GOV.