01A20387_r
06-11-2002
Glendale L. Faulkinbury, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Glendale L. Faulkinbury v. United States Postal Service
01A20387
June 11, 2002
.
Glendale L. Faulkinbury,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A20387
Agency No. 4E-852-0147-00
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision pertaining to 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. , the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. and Section 501
of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. � 791 et seq. The Commission accepts the appeal in accordance
with 29 C.F.R. 1614.405.
On April 10, 2000, complainant contacted the EEO office claiming that he
was the victim of unlawful employment discrimination. Pre-complaint
documentation reflects that complainant indicated that on January 1,
1998, the agency initiated a new program that permitted higher level grade
employees from other crafts to transfer into the Maintenance Craft at a
lower grade level; and that this program caused a slow down or advancement
for �seniority� custodians, thereby denying complainant career advancement
opportunities. Informal efforts to resolve complainant's concerns were
unsuccessful. Subsequently, complainant filed a complaint based on race,
color, religion, sex, age and disability. Complainant's complaint
was comprised of the matter for which he underwent EEO counseling,
discussed above.
On September 24, 2001, the agency issued a decision dismissing the
complaint for untimely EEO Counselor contact. Specifically, the agency
determined that complainant suspected discrimination on January 1, 1998,
but waited until April 10, 2000, to contact the EEO office.
Complainant makes no new contentions on appeal.
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 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 complainant reasonably suspected discrimination
more than forty-five days before his April 10, 2000 contact. The record
reflects that when asked about his untimely EEO Counselor contact,
complainant told the Counselor that he was gathering evidence to
determine whether he had a complaint. The Commission finds this to be an
insufficient reason for waiving the time limitation. The Commission has
found that, since the limitation period for contacting an EEO Counselor
is triggered by the reasonable suspicion standard, waiting until one
has "supporting facts" or "proof" of discrimination before initiating
a complaint can result in untimely Counselor contact. See Bracken
v. U.S. Postal Service, EEOC Request No. 05900065 (March 29, 1990).
Complainant has not identified any alleged incident of discrimination
that purportedly occurred within forty-five days of his initial EEO
contact on April 10, 2000. Accordingly, the agency's decision to
dismiss the complaint for untimely counselor contact was proper and is
hereby AFFIRMED.
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 (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
June 11, 2002
__________________
Date