01980136
10-29-1998
Roy E. Gamble, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Roy E. Gamble v. United States Postal Service
01980136
October 29, 1998
Roy E. Gamble, )
Appellant, )
)
v. ) Appeal No. 01980136
) Agency No. H0013897
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
The Commission finds that the agency's September 18, 1997 decision
dismissing appellant's complaint on the basis that appellant failed to
contact an EEO counselor within the 45-day time limit provided by 29
C.F.R.�1614.105(a)(1) is proper.
A review of the record shows that on January 7, 1997, appellant was
informed by his supervisor that he would not receive an annual salary
increase. At that time, appellant asked his supervisor "to explain his
decision". After receiving a copy of the requirements for the annual
increase on March 24, 1997, appellant sent a letter dated April 21, 1997,
to his supervisor. In said letter appellant informed his supervisor
that "since your arrival you have treated me with total disrespect
and subjected me to discrimination solely because of my race, Black
... if you are unwilling to resolve this issue then accept this letter
as an official complaint of discrimination and forward to the Manager
[of] Equal Employment Opportunity". By letter dated May 7, 1997,
appellant requested an award of $300,000 from the Postmaster General as
resolution to the unlawful discrimination he was allegedly suffering.
By letter dated June 4, 1997, the agency stated "as a PCES executive
and manager at Headquarters, I believe you are aware of the steps you
need to take to process a complaint of discrimination". In said letter
appellant was further advised to contact an EEO Counselor. On June 10,
1997, appellant sought EEO counseling.
Appellant did not seek EEO counseling until June 10, 1997, five months
after the alleged discriminatory event, although the record shows that
he suspected that he was being discriminated against since, at least,
January 1997. Instead, he decided to seek a resolution of the issue
in question, first with his supervisor and later with the Postmaster
General.<1> The Commission applies a "reasonable suspicion" standard
to the triggering date for determining the timeliness of the contact
with an EEO counselor. Cochran v. United States Postal Service, EEOC
Request No. 05920399 (June 18, 1992). Under this standard, the time
period for contacting an EEO counselor is triggered when the complainant
should reasonably suspect discrimination, but before all the facts that
would support a charge of discrimination may have become apparent. Id.;
Paredes v. Nagle, 27 FEP Cases 1345 (D.D.C. 1982). Even if we consider the
appellant's letter dated April 21, 1997 to be a request for counseling,
such counselor contact would be beyond the 45 day time limit for counselor
contact. The agency's decision dismissing the complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
October 29, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 The Commission has specifically held that an internal appeal of an
agency's adverse action and/or the filing of a grievance do not toll
the running of the time limit to contact an EEO counselor. See Hosford
v. Department of Veterans Affairs, EEOC Request No. 05890038 (June 9,
1989).