01a02533
06-29-2000
Willie Covington, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Willie Covington v. United States Postal Service
01A02533
June 29, 2000
Willie Covington, )
Complainant, )
)
v. ) Appeal No. 01A02533
) Agency No. 4I-530-0026-00
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On February 15, 2000, complainant filed a timely appeal with this
Commission from a final agency decision (FAD), pertaining to 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.<1> The
Commission accepts the appeal in accordance with 64 Fed. Reg. 37,644,
37, 659 (1999) (to be codified at 29 C.F.R. � 1614.405).
On October 29, 1999, complainant contacted the EEO office claiming
that he was subjected to discrimination based on race when he was
denied reassignment to a Laborer-Custodial position on August 30, 1999.
Informal efforts to resolve complainant's concerns were unsuccessful.
Accordingly, on December 2, 1999, complainant filed a formal complaint.
The complaint addressed the same matter for which complainant underwent
EEO counseling.
On January 19, 2000, the agency issued a FAD dismissing the complaint
for untimely EEO Counselor contact. Specifically, the agency indicated
that complainant contacted the EEO Counselor on October 29, 1999,
which was fifteen days after the alleged incident on August 30, 1999,
and therefore beyond the forty-five (45) day time limitation period.
Volume 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter
referred to as 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-give (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 he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
On appeal, complainant has failed to present adequate justification for
extending the limitation period beyond forty-five days. The Commission
determines that complainant's complaint was properly dismissed for
untimely EEO contact, because complainant cannot demonstrate his lack
of actual or constructive notice of the forty-five day time limit.
Accordingly, the agency's final decision dismissing complainant's
complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
June 29, 2000
________________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.