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
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.