01981717
02-17-1999
Harold J. Hill, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Harold J. Hill v. United States Postal Service
01981717
February 17, 1999
Harold J. Hill, )
Appellant, )
) Appeal No. 01981717
v. ) Agency No. 1H-371-0023-97
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning his complaint of unlawful employment discrimination,
in violation of Section 501 of the Rehabilitation Act of 1973, as
amended, 29 U.S.C. � 791 et seq. The final agency decision was received
by appellant on November 26, 1997. The appeal was postmarked December
22, 1997. Accordingly, the appeal is timely (see, 29 C.F.R. �1614.402),
and is accepted in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed allegations
number 1, 2, and 3 of appellant's complaint, as set forth in the final
agency decision, on the grounds that appellant failed to seek EEO
counseling in a timely manner.
BACKGROUND
Appellant contacted an EEO Counselor on August 7, 1997, alleging that
he was discriminated against on the bases of his physical disability
(hypertension) and reprisal for his prior EEO activity, when (1) the
agency refused to provide him documentation regarding an April 14, 1997,
pre-disciplinary interview; (2) he was cursed in front of co-workers
on April 28, 1997; (3) on May 16, 1997, he was interviewed by Postal
Inspectors without representation, subjected to a severe safety hazard,
exposed to second hand smoke, denied sick leave, and not allowed to clock
out and not paid for overtime; (4) he was escorted off agency property
on July 16, 1997; and (5) issued a Notice of Decision on July 22, 1997.
After EEO counseling concluded, appellant filed a formal complaint dated
September 29, 1997. The Agency determined that the appellant raised the
above stated allegations in his complaint.
Thereafter, the agency issued a final agency decision (FAD) dismissing
allegations one (1) through three (3) for failure to contact an EEO
Counselor within the 45-day time limitations period.<1>
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of
discrimination be brought to the attention of an EEO Counselor within 45
days of the alleged discriminatory event, or the effective date of an
alleged discriminatory personnel action. The Commission has adopted a
"reasonable suspicion" standard (as opposed to a "supportive facts"
standard) to determine when the limitation period is triggered under
the EEOC Regulations. See 29 C.F.R. �1614.105(a)(2); Ball v. USPS, EEOC
Request No. 05880247 (July 6, 1988). Thus, the limitation period is not
triggered until a complainant should reasonably suspect discrimination,
but before all the facts that would support a charge of discrimination
have become apparent.
EEOC Regulation 29 C.F.R. �1614.105(a)(2) requires that the agency or
the Commission shall extend the 45-day time limit when the individual
shows that they were not notified of the time limits and were not
otherwise aware of them, that they did know and reasonably should not
have known that the discriminatory matter or personnel action occurred,
that despite due diligence they were prevented by circumstances beyond
their 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, appellant's EEO contact on August 7, 1997 for alleged
discriminatory acts occurring in April and May of 1997 was beyond the
forty-five (45) day time limit provided in 29 C.F.R. �1614.105(a)(1). The
sole remaining question now, therefore, is whether the applicable time
limits should be extended for any reason. On appeal, appellant has
failed to proffer evidence which would invoke the requirements of 29
C.F.R. �1614.105(a)(2). Accordingly, the agency's decision to dismiss
appellant's complaint with regards to issue one (1) through three (3) for
failure to timely contact an EEO Counselor was proper, and is AFFIRMED.
CONCLUSION
Based upon a review of the record herein, it is the decision of the
Commission to AFFIRM the final agency decision.
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 tends 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. �l6l4.604(c).
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. 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:
Feb 17, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 The agency accepted issues number four (4)(escorted off agency property
on July 16, 1997) and five (5) (issued a Notice of Decision on July 22,
1997).