01982223
04-28-1999
Carl R. Blacklock, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Region), Agency.
Carl R. Blacklock, )
Appellant, )
)
v. ) Appeal No. 01982223
) Agency No. 4G772000297
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(S.E./S.W. Region), )
Agency. )
______________________________)
DECISION
I. INTRODUCTION
On January 20, 1998, appellant filed the instant appeal from the agency's
December 22, 1997 final decision dismissing appellant's complaint.
The agency dismissed the complaint pursuant to 29 C.F.R. �� 1614.107(a)
(failure to state a claim) and 1614.107(b) (untimeliness).
II. ISSUE
Whether the agency properly dismissed the complaint for failure to state
a claim and untimeliness.
III. BACKGROUND
On September 26, 1997, appellant filed a 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. Appellant alleged that he
was subjected to discrimination on the basis of race (Black) and sex
(male) when the agency charged him with being absent without leave (AWOL)
on overtime and suspended him for seven days.
The incident that gave rise to the complaint occurred on July 5, 1997
when appellant did not report for duty. According to the EEO Counselor's
report, appellant first contacted the EEO Office concerning this matter
on September 10, 1997.
In its final decision, the agency dismissed the complaint on the
alternative grounds of untimeliness and failure to state a claim.
The agency found that the complaint was time-barred because appellant
had failed to contact the EEO Counselor within the 45-day time period
mandated by 29 C.F.R. � 1614.105(a)(1). The agency concluded that the
complaint failed to state a claim because, appellant's allegations to
the contrary notwithstanding, its records showed that appellant had not
been suspended for seven days as a result of the July 5, 1997 incident.
IV. ANALYSIS AND FINDINGS
A. Timeliness
We find that the agency erred in dismissing the complaint on grounds
of untimeliness. EEOC Regulation 29 C.F.R.
� 1614.105(a)(1) requires that complaints of discrimination 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 Ball v. USPS, EEOC Request
No. 05880247 (July 6, 1988). 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. 29 C.F.R. � 1614.105(a)(1)
The instant case presents adequate reason to justify extension of the time
limits. It is well-established that "[a]n agency always bears the burden
of obtaining sufficient information to support a reasoned determination
as to timeliness." Williams v. Department of Defense, EEOC Request
No. 05920506 (August 25, 1992). It is incumbent upon the EEO Counselor
to inquire into the reasons for the delay when a complainant initiates
counseling beyond the applicable time limit. See Young v. U.S. Postal
Service, EEOC Request No. 05870263 (January 20, 1988). The record in
this case does not indicate that the EEO Counselor conducted an inquiry
with respect to the timeliness of appellant's counselor contact.
In his statement on appeal, appellant affirmatively asserts that his
initial contact with the EEO Office occurred on August 18, 1997, one
day before the expiration of the 45-day time limit. He also identifies
by name the counselor whom he contacted by telephone. In light of the
detailed nature of appellant's representations on this point and the
agency's failure to inquire into the matter, we find that the agency's
dismissal on timeliness grounds was improper.
B. Failure To State A Claim
We find that the agency erred in concluding that the complaint failed
to state a claim. EEOC Regulation 29 C.F.R. � 1614.107(a) provides
that an agency may dismiss a complaint which fails to state a claim
pursuant to 29 C.F.R. � 1614.103. In addition, the U.S. Supreme Court
has stated that an employee is sufficiently aggrieved to state a claim
when some personal loss or harm has been suffered with respect to a term,
condition, or privilege of employment. Trafficante v. Metropolitan Life
Insurance Co., 409 U.S. 204 (1972).
After a review of the agency's final decision, it seems that the agency
has addressed the merits of appellant's complaint without a proper
investigation as required by the regulations. We find that the agency's
articulated reason for the action in question, i.e., that appellant
had not, in fact, been suspended after being charged AWOL, goes to the
merits of the complaint, and is irrelevant to the procedural issue of
whether he has stated a justiciable claim under the regulations. See
Ferrazzoli v. United States Postal Service, EEOC Request No. 05910642
(August 15, 1991). The Commission has held that to file a justiciable
complaint, it is necessary only that a complainant allege a belief
that he or she has been subjected to adverse action because of his or
her protected class. See Zalucky v. United States Postal Service, EEOC
Request No. 05870508 (April 14, 1988).
In the instant case, appellant has adequately stated a claim by alleging
that he was suspended from work because of his race and sex. The harm
alleged, i.e., a loss of pay as a result of the suspension, is a harm
suffered �with respect to a term, condition, or privilege of employment�
and is sufficient to state a claim. appellant need not prove his claim
in order to state a claim under � 1614.103.
V. CONCLUSION
For the foregoing reasons, we VACATE the final agency decision and REMAND
the allegation to the agency in accordance with this decision and the
ORDER below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. � 1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
of the appropriate rights within one hundred fifty (150) calendar days
of the date this decision becomes final, unless the matter is otherwise
resolved prior to that time. If the appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant and a copy
of the notice that transmits the investigative file and notice of rights
must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 19848, Washington,
D.C. 20036. The agency's report must contain supporting documentation,
and the agency must send a copy of all submissions to the appellant.
If the agency does not comply with the Commission's order, the appellant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The appellant also has the right to file a civil action
to enforce compliance with the Commission's order prior to or following
an administrative petition for enforcement. See 29 C.F.R. ��1614.408,
1614.409, and 1614.503(g). Alternatively, the appellant has the right to
file a civil action on the underlying complaint in accordance with the
paragraph below entitled �Right to File A Civil Action.� 29 C.F.R. ��
1614.408 and 1614.409. A civil action for enforcement or a civil action
on the underlying complaint is subject to the deadline stated in 42
U.S.C. � 2000e-16(c) (Supp. V 1993). If the appellant files a civil
action, the administrative processing of the complaint, including any
petition for enforcement, will be terminated. See 29 C.F.R. � 1614.10.
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 (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. 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. In the alternative,
you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR
DAYS of the date you filed your complaint with the agency, or filed your
appeal with the Commission. 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.
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:
4/28/99
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations