01976920
10-27-1998
James P. Smith, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
James P. Smith v. United States Postal Service
01976920
October 27, 1998
James P. Smith, )
Appellant, )
)
v. ) Appeal No. 01976920
) Agency No. 4-H-390-0095-97
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 Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. The final agency decision was received by
appellant on August 18, 1997. The appeal was postmarked September 15,
1997. Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)),
and is accepted in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint for untimely counselor contact.
BACKGROUND
Appellant contacted an EEO counselor on April 8, 1997, regarding
allegations of discrimination. Specifically, appellant alleged that he
was discriminated against when in 1995 following an on-the-job injury,
he was required to change to a part time flexible position while a female
employee retained her regular status after sustaining an on-the-job
injury similar to appellant's. The record indicates that appellant
accepted limited duty job offers from the agency on April 6, 1995 and
October 6, 1995. Appellant's complaint states that on March 29, 1997
he learned of the similarly situated female employee.
Informal efforts to resolve appellant's concerns were unsuccessful.
Accordingly, on July 1, 1997, appellant timely filed a formal complaint
of discrimination on the basis of sex (male).
On August 15, 1997, the agency issued its final decision (FAD) dismissing
appellant's complaint for untimely EEO contact. The FAD determined that
appellant's EEO contact was beyond the forty-five (45) day time limit
provided in EEOC Regulations. The FAD further determined that appellant
had or should have had a reasonable suspicion of discrimination prior to
March 29, 1997 when he asserts that he learned that a similarly situated
female employee was permitted to retain her regular status following an
on-the-job injury.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that an aggrieved
employee must initiate contact with an EEO counselor within forty-five
(45) days of the date of the matter alleged to be discriminatory or,
in the case of 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 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.
The Commission determines that a fair reading of appellant's complaint
reflects that in June and October of 1995 appellant accepted limited duty
job offers from the agency following an on-the-job injury. Appellant
asserts on appeal that he only reasonably developed a suspicion of
discrimination on March 29, 1997 when he learned that the agency allowed a
female employee to retain her regular status after her injury. Based on
a thorough review of the record, the Commission finds that the agency
properly determined that appellant failed to contact an EEO Counselor
in a timely manner. The Commission finds that appellant should have
had a reasonable suspicion of discrimination more than forty-five (45)
days prior to his counselor contact on April 8, 1997.
CONCLUSION
Accordingly, the agency's decision to dismiss appellant's complaint for
failure to timely contact an EEO Counselor was proper and is hereby,
AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (MO795)
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 (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:
October 27, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations