01A23867_r
10-11-2002
Eugene F. Ferola, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Eugene F. Ferola v. United States Postal Service
01A23867
October 11, 2002
.
Eugene F. Ferola,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A23867
Agency No. 4B-020-0044-02
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated June 5, 2002, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
In his complaint, complainant alleged that he was subjected to
discrimination on the bases of race, sex, and in reprisal for prior
protected activity when on April 8, 2002, he became aware that a
similarly situated individual's driving privileges were reinstated,
while complainant's request to reinstate his driving privileges was
denied on January 9, 2002.
In a final agency decision dated June 5, 2002, the agency dismissed the
complaint stating that complainant raised the same claim of discrimination
in Agency No. 4B-020-0039-01. Therein, complainant claimed discrimination
on the bases of age, disability, and in reprisal for prior protected
activity when (1) on December 29, 2000, his driving privileges were
revoked; and (2) on February 5, 2001, he was reassigned to the Boston
Processing & Distribution Center. The agency indicated that on June 19,
2001, his complaint was accepted for investigation and further processing,
and is currently under investigation. The agency also dismissed the
complaint for untimely EEO Counselor contact. Specifically, the agency
found that complainant initially contacted a Counselor on April 11,
2002, which was beyond the 45-day limitation period for making timely
EEO contact.
A review of complainant's previously filed complaint and the agency's
Acceptance of Complaint (Agency No. 4B-020-0039-01) reflects that
in the prior complaint, complainant claimed that he was subjected to
discrimination when (1) on December 29, 2000, his driving privileges
were revoked; and (2) on February 5, 2001, he was reassigned to the
Boston Processing & Distribution Center.
It has long been established that "identical" does not mean "similar." The
Commission has consistently held that in order for a complaint to be
dismissed as identical, the elements of the complaint must be identical
to the elements of the prior complaint in time, place, incident,
and parties. See Jackson v. Department of the Air Force, EEOC Appeal
No. 01955890 (April 5, 1996). In the instant complaint, complainant
alleges that he was the victim of unlawful employment discrimination when
on April 8, 2002, he became aware a similarly situated individual's
driving privileges were reinstated, while complainant's request
to reinstate his driving privileges was denied on January 9, 2002.
The matter raised in Agency 4B-020-0039-01 (revocation of driving
privileges) does not address the same issue.
Regarding the agency's alternative grounds for dismissal, 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 Ball v. United States Postal Service, EEOC Request
No. 05880247 (July 6, 1988). Thus, the limitations period 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 he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
The Commission finds that although complainant requested and was denied
reinstatement in January 2002, complainant had no reason to suspect
discrimination until he discovered on April 8, 2002, that another
employee's privileges were being reinstated. Therefore, the limitation
period for complainant to initiate EEO contact began on April 8, 2002,
and his EEO Counselor contact on April 11, 2002, was timely.
Accordingly, the agency's decision to dismiss complainant's complaint
was improper, and is hereby REVERSED. The complaint is REMANDED to the
agency for further processing in accordance with this decision and the
Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant 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 complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant 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 (K0501)
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 complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant 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. �� 1614.407 and 1614.408.
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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (R0900)
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 within ninety (90) calendar days from the date
that you receive this decision. 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 (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
October 11, 2002
__________________
Date