Latrez M. Hinton, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 4, 2001
01997116 (E.E.O.C. Jan. 4, 2001)

01997116

01-04-2001

Latrez M. Hinton, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Latrez M. Hinton v. United States Postal Service

01997116

01-04-01

.

Latrez M. Hinton,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01997116

Agency No. 1C081003599

DECISION

INTRODUCTION

Complainant timely filed an appeal with this Commission from the

final agency decision. This case pertains to his complaint of

unlawful employment discrimination in violation of Section 501 of the

Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �

791 et seq. Based on a review of the record, we find that the agency

properly dismissed complainant's formal EEO complaint for untimely EEO

Counselor contact pursuant to 29 C.F.R. 1614.105 (a)(2).<1>

ISSUE PRESENTED

The issue presented herein is whether the agency properly dismissed

complainant's formal EEO complaint for failure to seek EEO counseling

in a timely manner.

BACKGROUND

Complainant filed a formal complaint on January 29, 1999, alleging that

he was discriminated against on the basis of his physical disability

(hearing impaired) when he was laid off after working three consecutive

casual appointments (1/5/96, 12/31/96, 12/31/97). Complainant's complaint

was dismissed for failure to contact an EEO Counselor in a timely fashion.

In its final decision (FAD), the agency reasoned that Counselor contact

was not made within forty-five (45) days of the alleged discriminatory

incidents of January 5, 1996, December 31, 1996 and December 31, 1997,

and complainant had offered no explanation for his delay in contacting

a Counselor.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires an aggrieved

person to initiate contact with an EEO Counselor within 45 days of the

date of the matter alleged to be discriminatory or, in the case of a

personnel action, within 45 days of the effective date of the action.

The Commission shall extend the 45-day time limit in paragraph (a)(1)

of this section when the individual shows that he or she was not

notified of the time limits and was not otherwise aware of them, that

he or she did not know and reasonably should not have known that the

discriminatory matter or personnel action occurred, that despite due

diligence he or she was prevented by circumstances beyond his or her

control from contacting the Counselor within the time limits, or for

other reasons considered sufficient by the agency or the Commission. See

29 C.F.R. 1614.105(a)(2).

The Commission has adopted a "reasonable suspicion" standard (as

opposed to a "supportive facts" standard) to determine when the 45-day

limitation period is triggered. Thus, the time limitation to contact

an EEO Counselor arises when the complainant has sufficient knowledge of

facts and circumstances to support a reasonable suspicion that prohibited

discrimination has occurred. See Howard v. Dept. of the Navy, EEOC

Request No. 05970852 (February 11, 1999); Johnson v. Dept. of the Navy,

EEOC Request No. 05981008 (November 4, 1999).

After reviewing the entire record, the Commission concludes that the

complainant failed to present adequate justification for extending the

45-day time limit. In his complaint, the complainant alleged that he

was unlawfully discriminated against on January 5, 1996, December 31,

1996 and December 31, 1997, when he was laid off. The complainant,

however, did not contact an EEO Counselor until February 16, 1999.

The record also reveals through supervisory affidavit that the South

Jersey Processing and Distribution Center where complainant worked

clearly posted an EEO Poster with appropriate EEOC Counselor contact

timeframes at complainant's work site. Moreover, the complainant does

not argue that he was unaware of the time limits. At the latest, the

complainant should have had a reasonable suspicion of discrimination by

December 1998, when he was not contacted by a supervisor to return to work

for the 1998 holiday season. Applying even this latest possible date,

complainant's initial contact with an EEO Counselor fails to be timely.

The Commission finds, therefore, that the complainant's contact of an

EEO Counselor on February 16, 1999 was untimely.

CONCLUSION

Accordingly, the Commission holds that the agency's decision to

dismiss complainant's formal EEO complaint for failure to initiate EEO

Counselor contact within the 45-day time limit contained in 29 C.F.R. �

1614.105(a)(2) was proper, and is therefore, AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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

__01-04-01________________

Date

1On November 9, 1999, revised regulations

governing the EEOC's federal sector complaint process went into effect.

These regulations apply to all federal sector EEO complaints pending at

any stage in the administrative process. Consequently, the Commission

will apply the revised regulations found at 29 C.F.R. Part 1614 in

deciding the present appeal. The regulations, as amended, may also be

found at the Commission's website at www.eeoc.gov.