01a45259
11-01-2004
James Wilson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
James Wilson v. United States Postal Service
01A45259
November 1, 2004
.
James Wilson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A45259
Agency No. 6W-000-0007-04
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated July 20, 2004, 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. and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
On March 1, 2004, complainant initiated EEO Counselor contact.
Informal efforts to resolve his concerns were unsuccessful.
In his complaint, filed on Mary 15, 2004, complainant alleged that he
was subjected to discrimination on the bases of race, sex, and age when:
He was not promoted to the position of Facility Communication Technician
DCS-17; and
He was denied the opportunity to take advantage of the Education Fund.
In its final decision dated July 20, 2004, the agency dismissed the
instant complaint pursuant to
29 C.F.R. � 1614.107(a)(7), for failure to cooperate. The agency noted
that it sent complainant two letters, dated June 3, 2004, and June
28, 2004, requesting that complainant provide information relating to
his claims. Regarding claim 2, the agency requested that complainant
identify the dates that he requested to utilize the Education Fund,
and the dates that he was denied the opportunity to make use of it.
Both letters indicated that if complainant did not respond within fifteen
days of the date of receipt, his claims could be dismissed. Both letters
also indicated that, for timeliness purposes, the agency presumed that
the ltters were received within five days of the dates of mailing.
The agency noted that neither of the two agency letters were returned
for non-delivery, and concluded that both letters were received within
five calendar days from the dates of mailing.
Alternatively, the agency dismissed claim 1 on the grounds of untimely EEO
Counselor contact, pursuant to EEOC Regulation 29 C.F.R. � 1614.107(a)(2).
Claim 1
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.
Regarding claim 1, a review of the record indicates that complainant was
notified via email on October 20, 2003, that he was not selected for the
position of Facility Communication Technician DCS-17. The Commission
determines that complainant's EEO Counselor contact on March 1,
2004, regarding his October 20, 2003 non-selection was untimely. .
Complainant failed to demonstrate that he was unaware of the time
limitations for seeking EEO counseling regarding his non-selection,
or that he was prevented by matters beyond his control from seeking
counseling in a timely manner. We find, therefore, that the agency's
dismissal of claim 1 in accordance with EEOC Regulation 29 C.F.R. �
1614.107(a)(2) was proper.
Because we find that the agency's dismissal of claim 1 as untimely was
proper, we will not discuss the agency's alternate grounds for dismissal
of this claim.
Claim 2
The regulation set forth at 29 C.F.R. � 1614.107(a)(7) provides for the
dismissal of a complaint where the agency has provided the complainant
with a written request to provide relevant information or otherwise
proceed with the complainant, and the complainant has failed to respond
to the request within 15 days of its receipt or the complainant's response
does not address the agency's request, provided that the request included
a notice of the proposed dismissal. The regulation further provides
that, instead of dismissing for failure to cooperate, the complaint may
be adjudicated if sufficient information for that purpose is available.
The Commission notes that by letter dated June 3, 2004, the agency
requested detailed information from complainant to clarify his claim
regarding the education fund. The agency's letter advised complainant
that his failure to provide the requested information within fifteen days,
would result in the dismissal of his complaint. Complainant failed to
respond to the agency's June 3, 2004 correspondence.
In a Notice of Proposed Dismissal dated June 28, 2004, the agency again
requested specific information from complainant regarding his claim and
allowed complainant an additional fifteen days in which to respond, or
risk dismissal of his complaint. Complainant again failed to respond to
the agency's Notice. Subsequently, the agency issued its July 20, 2004
final decision dismissing complainant's complaint for failure to respond.
Upon review, we find that the agency's dismissal of claim 2 for failure
to cooperate was proper.
Accordingly, the agency's decision dismissing complainant's complaint
is hereby AFFIRMED for the reasons set forth herein.
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
November 1, 2004
__________________
Date