01982614
03-10-1999
David D. Moore, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
David D. Moore, )
Appellant, )
)
v. ) Appeal No. 01982614
) Agency No. 4-G-760-0266-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
Appellant timely initiated an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from a final agency decision (FAD)
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 Commission hereby accepts the appeal in
accordance with EEOC Order No.960.
The issue on appeal is whether the agency properly dismissed the
appellant's complaint, pursuant to 29 C.F.R. �1614.105(a)(1), for failure
to make timely contact with an EEO Counselor.
Appellant alleges that he was discriminated against on the bases of
race (Caucasian), and sex (male), when the light duty committee did not
meet to consider his April 11, 1997, application for light duty, and
the application was never acted on by the agency. The agency dismissed
the complaint, contending that the appellant did not make initial EEO
Counselor contact until June 9, 1997, more than 45 days after the April
11, 1997, application.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the EEO 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 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.
On appeal, the appellant argues that he did not know of the alleged
discrimination in question until May 22, 1997, when he received a �Step-2
grievance procedure�, and that he mailed a letter to the EEO Counselor
on May 27, 1997, which was received on June 9, 1997. He contends that
the agency should not use the application date as the discrimination
event date, but rather the date he learned of the discrimination alleged.
We agree with the appellant that the agency erred in using the application
date to determine whether or not EEO Counselor contact was timely. Here,
because the agency never formally acted on the application, the critical
date is the date that appellant first knew or reasonably suspected the
discrimination claimed.
A review of the record indicates that appellant contacted his union
on April 19, 1997, complaining of management's violation of two
union/management agreements, contending that the agency failed to �honor
LMU & NA with regard to light duty� specifying those provisions in each
which include the requirement to send light duty applications to a light
duty committee for consideration. The identical matter is alleged in
the instant complaint. A Step 2 Meeting was conducted on May 2, 1997,
and a Grievance Summary (undated) was completed indicating that the
grievance was denied because appellant failed to provide the necessary
medical documentation.
In order for the appellant to bring these allegations to the union
for redress on April 19, 1997, he must have known of, or suspected,
the discrimination alleged here as of at least that date. However, even
using the April 19, 1997, date for computation, the appellant was required
to contact the EEO Counselor by June 3, 1997, in order for the contact
to be within 45 days and deemed timely under the law and regulations
cited above. Although appellant argues that he was not aware of the
discrimination until after completion of the Step-2 procedure, it is
obvious that he knew of the agency's failure to refer his application
to the light duty committee when he brought his grievance to the union
on April 19, 1997.
We note that the appellant does not allege that she was unaware of the
45 day EEO Counselor contact requirement; and that, in its FAD, the
agency states that an EEO poster was appropriately displayed, and that
all employees were given written instructions regarding the EEO process
during an orientation period. See, Thompson v. Department of the Army,
EEOC Request No. 05910474 (Sept. 12, 1991), and Pride v. United States
Postal Service, EEOC Request No. 05930134 (Aug. 19, 1993). Accordingly,
we AFFRIM the FAD.
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.
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. 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.F.R.).
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:
March 10, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations