Peter Badore, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Northeast Area), Agency.

Equal Employment Opportunity CommissionMay 18, 2005
01a52373 (E.E.O.C. May. 18, 2005)

01a52373

05-18-2005

Peter Badore, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Northeast Area), Agency.


Peter Badore v. United States Postal Service

01A52373

May 18, 2005

.

Peter Badore,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Northeast Area),

Agency.

Appeal No. 01A52373

Agency No. 4B-140-0011-05

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated January 6, 2005, 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

Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as

amended, 29 U.S.C. � 791 et seq. In his complaint, complainant alleged

that he was subjected to discrimination on the bases of religion (Atheist)

and disability (perceived mental disability) when:

on September 10, 2003, he was issued a 7-Day Suspension, charging him

with failure to follow instructions;

on September 10, 2003, he was placed in an emergency off-duty (non-pay)

status; and,

on December 6, 2003, he was issued a Notice of Removal, effectuated June

4, 2004, charging him with unacceptable conduct.

The agency dismissed claims 1 through 3 for untimely EEO counselor

contact. Specifically, the agency determined that complainant contacted

an EEO counselor on July 13, 2004, but did not exhibit an intent to

pursue the EEO process until his pre-complaint documents were received

on November 18, 2004, in an envelope postmarked November 17, 2004.

Because November 17, 2004, is more than forty-five days beyond the

September 10, 2003 and June 4, 2004, dates of the alleged discriminatory

conduct, the agency deemed his EEO counselor contact as untimely.

The record indicates that, in his November 16, 2004, letter to the

agency regarding his EEO claim, complainant stated that �[i]t has

been extremely difficult to pursue this during a time when I have been

searching for work.�

EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of

discrimination should be brought to the attention of the EEO 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 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.

After a careful review of the record, we find that the agency has properly

dismissed claims 1 through 3 for untimely EEO counselor contact. Here,

the record is clear that although complainant contacted an EEO counselor

on July 13, 2004, he did not pursue his complaint until he mailed his

pre-complaint documents on November 17, 2004. The Commission has held

that in order to establish EEO counselor contact, an individual must

contact an agency official logically connected to the EEO process and

exhibit an intent to begin the EEO process. Allen v. United States

Postal Service, EEOC Request No. 05950933 (July 9, 1996). We find that

complainant's delay in submitting his pre-complaint documents until

November 17, 2004, indicates that he did not intend to begin the EEO

process until that time. Consequently, as complainant's November 17,

2004, EEO counselor contact occurred more than forty-five days after

the September 10, 2003 and June 4, 2004, dates, it was untimely.

Accordingly, the agency's decision dismissing complainant's complaint

is hereby AFFIRMED.

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

May 18, 2005

__________________

Date