Richard E. Tyson, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 17, 2003
01a30555_r (E.E.O.C. Mar. 17, 2003)

01a30555_r

03-17-2003

Richard E. Tyson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Richard E. Tyson v. United States Postal Service

01A30555

March 17, 2003

.

Richard E. Tyson,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A30555

Agency No. 1E-891-0050-01

DECISION

Upon review, the Commission finds that the agency's decision dated

September 24, 2002, dismissing complainant's complaint due to untimely

EEO Counselor contact is proper pursuant to 29 C.F.R. � 1614.107(a)(2).

In his complaint, complainant alleged discrimination based on race (Black)

when on November 13, 2000, he was issued a Maintenance Selection System

(MSS) Incraft Rating Summary which contained erroneous information

and revealed to him that the review panel and maintenance management

conspired to fail him because of his race in order to prevent him from

advancing in the maintenance craft. The record indicates that complainant

contacted an EEO Counselor with regard to his complaint on July 5, 2001,

which was beyond the 45-day time limit set by the regulations. In his

complaint, complainant, specifically, indicated that he did not contact

an EEO Counselor until he could prove he had been discriminated against.

Complainant further indicated that in order to prove discrimination he

had to learn enough about the MSS to understand how the discrimination

was taking place, and he did not find the proof until July 2001.

The Commission has adopted a �reasonable suspicion� standard (as opposed

to a �supportive facts� standard) to determine when the limitation period

is triggered under the EEOC Regulations. See 29 C.F.R. � 1614.105(a)(2);

Ball v. United States Postal Service, EEOC Request No. 05880247 (July 6,

1988). Thus, the limitations period is not triggered until a complainant

reasonably should have suspected discrimination, but before all the facts

that would support a charge of discrimination have become apparent.

In the instant case, the Commission finds that complainant reasonably

should have suspected discrimination when he received the alleged MSS

rating which prompted him to look into the matter. The Commission

also finds that complainant's waiting until he had evidence to prove

the alleged discrimination does not toll the requisite time limit for

contacting an EEO Counselor. It is noted that complainant does not

argue that he was unaware of the requisite time limit to contact an EEO

Counselor at the time of the alleged incident.

Accordingly, the agency's decision is 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

March 17, 2003

__________________

Date