01997252
01-08-2001
Robert P. Sweeney, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Robert P. Sweeney v. United States Postal Service
01997252
January 8, 2001
.
Robert P. Sweeney,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01997252
Agency No. 4-C-170-0026-99
DECISION
Complainant filed an appeal with this Commission from an agency decision
concerning his complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. �2000e et seq., Section 501 of the Rehabilitation Act of 1973, as
amended, 29 U.S.C. �791 et seq., and the Age Discrimination in Employment
Act of 1967, as amended, 29 U.S.C. �621 et seq.
ISSUE PRESENTED
The issue presented is whether the agency properly dismissed the first
claim of the complaint on the grounds of untimely EEO contact and the
second claim on the grounds of failure to state a claim.
BACKGROUND
According to the EEO Counselor's report, complainant initiated
contact with an EEO Counselor on February 5, 1999. On April 29, 1999,
complainant filed a formal EEO complaint wherein he claimed that he
was discriminated against on the bases of his age (41), disability
(diabetes), and in reprisal for his previous EEO activity. The agency
defined the claims in the complaint as follows: (1) On December 6, 1998,
complainant received notification that he was ineligible to apply for a
Postmaster position in Hamlin, Pennsylvania (complainant claimed that the
Harrisburg, Pennsylvania District changed the eligibility requirements
for the Postmaster position in Hamlin after he filed his previous EEO
complaint); and (2) Management officials did not return complainant's
telephone calls or written correspondence after he received his notice
of ineligibility for the Postmaster position in Hamlin, Pennsylvania.
The record contains a letter dated December 1, 1998, wherein complainant
was informed that his job application for the Postmaster position in
Hamlin, Pennsylvania could not be considered because he failed to meet
the eligibility requirement of being employed within the Harrisburg,
Pennsylvania District where the vacant office is located.
By letter dated July 7, 1999, from complainant to the EEO Office,
complainant stated that he had always been allowed to apply for vacancies
in the Harrisburg District until he filed his previous complaint.
According to complainant, the Harrisburg District posted a vacancy
announcement for less than the minimum area of consideration outlined
in the Personnel Handbook. Complainant stated that he lives 27 miles
from Hamlin, Pennsylvania, and that the Handbook provides the minimum
area of consideration for an EAS-15 Postmaster position includes people
who live within 50 miles of the vacancy office.
In its decision dated August 20, 1999, the agency dismissed claim (1)
on the grounds that complainant failed to initiate contact with an EEO
Counselor in a timely manner. The agency determined that complainant
did not initiate contact with an EEO Counselor until February 5, 1999,
which was 61 days after complainant learned that he was ineligible
to apply for the Postmaster position. The agency dismissed claim (2)
on the grounds of failure to state a claim. According to the agency,
complainant submitted no evidence to demonstrate that he suffered any
harm or injury with respect to a term, condition, or privilege of his
employment when management officials did not return his calls or written
correspondence after he received his notice of ineligibility.
On appeal, complainant contends that he contacted an EEO Counselor within
45 days of the appointment of the Postmaster. According to complainant,
he initially believed that the agency had made a mistake when it informed
him that he was ineligible to apply for the Postmaster position due to
the language in the aforementioned portion of the Personnel Handbook.
Complainant maintains that he did not suspect discrimination until
the agency failed to respond to his letters and telephone calls.
Complainant argues that he has suffered personal harm because he was
denied a promotion.
In response, the agency asserts that complainant was aware of the EEO
process in light of his prior EEO activity. The agency maintains that
complainant has not provided evidence to warrant a waiver of the 45-day
limitation period for contacting an EEO Counselor.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity 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 (as opposed
to a "supportive facts" 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.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
Initially, we find that the crux of this complaint is the agency's
decision that complainant was not eligible for the Postmaster position
in Hamlin, Pennsylvania. The matter previously referenced as claim (2)
should be incorporated into the first claim since it relates to the notice
of ineligibility. The record reveals that complainant learned that he was
ineligible for the Postmaster position in Hamlin, Pennsylvania on December
6, 1998. Complainant did not initiate contact with an EEO Counselor until
February 5, 1999. However, complainant argues that he did not suspect
discrimination until the agency failed to respond to his telephone calls
and letters concerning his ineligibility. In fact, complainant maintains
that initially he believed the agency made a mistake when it informed
him that he was ineligible for the Postmaster position. The agency has
not refuted complainant's position that he lacked a reasonable suspicion
of discrimination at the time that he was informed of his ineligibility.
We find that complainant lacked a reasonable suspicion of discrimination
with regard to his ineligibility for the Postmaster position until the
agency failed to respond to his telephone calls and letters concerning
this issue. We note that there is no evidence in the record that suggests
complainant developed a reasonable suspicion of discrimination more than
45 days before he initiated contact with an EEO Counselor. Therefore,
we find that complainant's contact of an EEO Counselor on February 5,
1999, was within the 45-day limitation period. Accordingly, the agency's
dismissal of the complaint on the grounds of untimely EEO contact was
improper and is REVERSED. This complaint is hereby REMANDED pursuant
to the Order set forth below.
ORDER (E0900)
The agency is ordered to process the remanded claim in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claim within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement of
the order. 29 C.F.R. � 1614.503(a). The complainant also has the right
to file a civil action to enforce compliance with the Commission's order
prior to or following an administrative petition for enforcement. See 29
C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively,
the complainant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action
for enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. � 2000e-16(c)(Supp. V 1993). If the
complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
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
(R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
January 8, 2001
__________________
Date