01a00207
04-03-2000
Alphonso Joinder, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Mid West Areas), Agency.
Alphonso Joinder, )
Complainant, )
)
v. ) Appeal No. 01A00207
) Agency No. 1J-607-0097-97
William J. Henderson, ) Hearing No. 210-98-6467X
Postmaster General, )
United States Postal Service, )
(Great Lakes/Mid West Areas), )
Agency. )
____________________________________)
DECISION
On October 4, 1999, 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., and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.<1> In his complaint, complainant alleged that he
was subjected to discrimination on the bases of race (African American)
and age (DOB; 2/1/47), when, beginning on July 28, 1997, he was denied
training for a supervisory position.
On July 30, 1997, complainant contacted an EEO Counselor and alleged
he was discriminated against as referenced above. Informal efforts
to resolve his complaint were unsuccessful, and on November 28, 1997,
complainant filed a formal complaint of discrimination. The record
reveals that on January 20, 1998, the agency accepted the complaint for
investigation. Complainant subsequently requested a hearing before an
EEOC Administrative Judge (AJ).
On February 5, 1999, the AJ remanded the case to the agency to complete
a supplemental investigation within forty-five days. Specifically, the
AJ found complainant objected to the agency's framing of the complaint,
and argued that the accepted issues in the complaint should be broadened
to include the denial of training for the last seventeen years.
For instance, complainant alleged that the agency afforded certain
comparable employees more favorable treatment starting in late 1970.
As such, the AJ ordered that the agency to make a determination as to
whether the
scope of complainant's allegations were timely raised with an EEO
counselor, and if not, provide complainant with appeal rights to the
Office of Federal Operations.
The agency completed its supplemental investigation on May 10, 1999.
On September 17, 1999, the agency issued a final decision finding that,
although complainant alleged he was denied training in 1983, he failed to
bring his concerns to management's attention because, �he did not want to
rock the boat.� The agency found that EEO posters referencing the time
period for initiating contact with an EEO Counselor were on display at
complainant's post office. In light of complainant's failure to contact
an EEO Counselor until July 30, 1997, the agency dismissed complainant's
claims of discrimination with �dates prior to July 28, 1997" as untimely.
On appeal, complainant contends that the agency unreasonably delayed in
conducting the supplemental investigation. Further, he argues that the
EEO poster at the Central Garage is not prominently displayed, and was
not displayed at all in the Central Garage until recently.
EEOC Regulation 29 C.F.R. � 1613.214(a)(1)(i), effective prior to October
1, 1992, required that
complaints of discrimination be brought to the attention of an EEO
Counselor within 30 days. EEOC Regulation 29 C.F.R. � 1614.105(a)(1),
effective October 1, 1992, requires that complaints of discrimination
be brought to the attention of an EEO Counselor within 45 days of
the date of the matter alleged to be discriminatory or, in the case
of a personnel action, within 45 days of the effective date of the
action. EEOC Regulation 29 C.F.R. � 1614.105(a)(2) provides that the
agency or the Commission shall extend the 45-day time limit under certain
circumstances. The Commission has adopted a "reasonable suspicion"
standard (as opposed to a "supportive facts" standard) to determine
when the limitation period is triggered. See Ball v. USPS, EEOC Request
No. 05880247 (July 6, 1988). Thus, the limitation period is not triggered
until a complainant reasonably suspects discrimination, but before all
the facts that support a charge of discrimination have become apparent.
The Commission has held that the time requirements for initiating EEO
counseling could be waived as to certain allegations within a complaint
when the complainant alleged a continuing violation; that is, a series
of related discriminatory acts, one of which fell within the time period
for contacting an EEO Counselor. See McGivern v. U.S. Postal Service,
EEOC Request No. 05901150 (December 28, 1990); Starr v. U.S. Postal
Service, EEOC Appeal No. 01890412 (April 6, 1989). It is important,
in determining whether a claim for a continuing violation is stated,
to consider whether a complainant had prior knowledge or suspicion of
discrimination and the effect of this knowledge. See Berry v. Board of
Supervisors, 715 F.2d 971 (5th Cir. 1983), cert. denied, 479 U.S. 868
(1986); Sabree v. United Brotherhood of Carpenters and Joiners Local
No. 33, 921 F.2d 396 (1st Cir. 1990). The Commission described Sabree
as holding that a plaintiff who believed he or she was subjected to
discrimination had the obligation to file promptly or lose his or her
claim, versus a complainant who is unable to appreciate that he or she is
being discriminated against until he or she has lived through a series of
acts and is thereby able to perceive the overall discriminatory pattern.
Hagan v. Department of Veterans Affairs, EEOC Request No. 05920709
(January 7, 1993).
Upon review, the Commission finds that the agency's decision to dismiss
the complaint was proper. The record contains complainant's affidavit
that was taken during the supplemental investigation. Therein,
complainant testified that as early as 1983, ten individuals both in
and outside of his protected classes were treated more favorably than he
was when they recieved training and increased promotional opportunities.
This testimony reveals complainant was aware that race and/or age were
allegedly factors in the assignment of training opportunities. In light
of complainant's reasonable suspicion as early as 1983, that he was being
discriminated against, his reliance on the continuing violation theory
is misplaced. Additionally, complainant cites multiple officials who
allegedly denied him training and promotional opportunities. Accordingly,
we find complainant's EEO contact of July 30, 1997 was untimely with
respect to those incidents that occurred more than forty-five days
prior to July 30, 1997. Additionally, complainant has not offered
sufficient justification to extend the applicable time limitations.
We also note that the Commission has held that appellants must act with
due diligence in the pursuit of their claim or the doctrine of laches
may be applied. See O'Dell v. Department of Health and Human Services,
EEOC Request No. 05901130 (December 27, 1990).
The record also contains an affidavit from an individual who testified she
has been a member of the EEO staff since 1981. She testified that since
1981, EEO posters were prominently displayed on the workroom floor at
complainant's facility, as well as all Personnel Offices, EEO Officers,
Administrative Offices, City Letter Carrier Stations, Finance Stations,
Airport Mail Center, Irving Park Road Processing & Distribution Center,
the Computer Forwarding System Unit, and Maintenance Offices. We find,
therefore, that complainant had constructive knowledge of the applicable
time limits. See Santiago v. United States Postal Service, EEOC Request
No. 05950272 (July 6, 1995).
Although complainant indicates that he did not want to �rock the boat�
if he pursued an EEO complaint, the Commission has repeatedly held that
mere fear of reprisal is an insufficient justification for extending the
time limitation for contacting an EEO Counselor. See Duncan v. Department
of Veterans Affairs, EEOC Request No. 05970315 (July 10, 1998); Kovarik
v. Department of Defense, EEOC Request No. 05930898 (December 9, 1993).
Indeed, complainant's admission that he did not want to contact an EEO
Counselor at the time supports the agency's position that complainant
was aware of his obligation to initiate the complaint process at the
appropriate time.
In light of the aforementioned, we AFFIRM the agency's final decision
which dismissed the incidents that occurred prior to July 28, 1997.
Complainant and the agency are advised, however, that complainant's
claims of discrimination that have been dismissed on timeliness grounds
may be used as background evidence in support of his timely claim.
As for complainant's claim that he was denied training in July 1997,
the matter should be remanded to an AJ as complainant has not withdrawn
his hearing request. As such, we REMAND the complaint to the appropriate
hearing unit for the assignment of an AJ.
ORDER
The complaint is remanded to the Hearings Unit of the appropriate EEOC
field office for scheduling of a hearing in an expeditious manner.
The agency is directed to submit a copy of the complaint file to the
EEOC Hearings Unit within fifteen (15) calendar days of the date this
decision becomes final. The agency shall provide written notification
to the Compliance Officer at the address set forth below that the
complaint file has been transmitted to the Hearings Unit. Thereafter,
the Administrative Judge shall issue a decision on the complaint in
accordance with 29 C.F.R. � 1614.109 and the agency shall issue a final
action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T1199)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed AND that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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:
April 3, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant1On 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.