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