01973931
11-13-1998
Appellant,) ) v.) Appeal No. 01973931 ) Agency No. 4G-752-1402-95 William J. Henderson,) Postmaster General,) United States Postal Service,) Agency.
John P. Hines,)
Appellant,)
)
v.) Appeal No. 01973931
) Agency No. 4G-752-1402-95
William J. Henderson,)
Postmaster General,)
United States Postal Service,)
Agency.)
_______________________________________)
DECISION
INTRODUCTION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (EEOC) from the final agency decision concerning his equal
employment opportunity (EEO) complaint, which alleged discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. �2000e et seq., and the Rehabilitation Act of 1973, as amended,
29 U.S.C. �791 et seq. The appeal is accepted by the Commission in
accordance with the provisions of EEOC Order No. 960.001.
ISSUE PRESENTED
The issue presented is whether the agency properly dismissed appellant's
EEO complaint for failure to contact an EEO Counselor in a timely fashion.
BACKGROUND
This is the second appeal in this case. In the previous decision,
incorporated by reference herein, the Commission vacated the final
agency decision (FAD 1) dismissing appellant's complaint for failure to
contact an EEO Counselor in a timely fashion. The Commission remanded
the case for a supplemental investigation to determine when appellant
reasonably should have suspected discrimination and, if his counselor
contact was untimely, whether he had been mentally incapacitated to
the extent that the deadline for counselor contact should be waived.
John P. Hines v. United States Postal Service, EEOC Appeal No. 01962313
(November 14, 1996). On February 19, 1997, the agency issued FAD 2 again
dismissing appellant's complaint for failure to contact an EEO Counselor
in a timely fashion. It is from this decision that appellant now appeals.
ANALYSIS AND FINDINGS
The Commission's regulations require 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.
29 C.F.R. �1614.105(a)(1). The Commission has adopted a "reasonable
suspicion" standard, as opposed to a "supportive facts" standard,
to determine when the 45-day limitation period is triggered. See Ball
v. U.S. Postal Service, EEOC Request No. 05880247 (July 6, 1988). Thus,
the limitations period is not triggered until a complainant reasonably
suspects discrimination, but before all of the facts that support a
charge of discrimination have become apparent.
The Commission's regulations provide that the 45-day time limitation
may be tolled if the complainant shows that he or she was not notified
of the time limits and was not otherwise aware of them; that he or she
did not know and reasonably should not have known that discrimination
had occurred; that, despite due diligence, he or she was prevented
by circumstance beyond his or her control from contacting an EEO
Counselor, or for other reasons considered sufficient by the agency or
the Commission. 29 C.F.R. �1614.105(a)(2). As noted in the previous
decision, a complainant seeking waiver of this deadline on the basis
of physical or mental incapacity must demonstrate that he or she was
physically or mentally unable to comply with the deadline. See Zelmer
v. U.S. Postal Service, EEOC Request No. 05890164 (March 8, 1989)
(physical incapacity); Crear v. U.S. Postal Service, EEOC Request
No. 05920700 (October 29, 1992) (mental incapacity).
In the instant case, the parties dispute both when appellant became
aware that he had been removed from employment and when appellant first
suspected or reasonably should have suspected discrimination relative
to his removal. Regarding when appellant became aware of his removal,
the record reflects that appellant was told on January 10, 1995, that
he was being removed, but received no written notification from the
agency until August 29, 1995, after he had contacted an EEO Counselor.
It appears that the agency sent a January 25, 1995, removal notice
(effective February 27, 1995) to appellant's address of record, a post
office box which had been closed. Appellant stated that, when he inquired
of the union about his employment status, he was told by the union that
it had no record of his removal. The Commission however, finds that
appellant did not exercise due diligence in ascertaining his employment
status with the agency. Appellant had reason to suspect, if not to know,
in January 1995 that he had been removed from employment. He was informed
on January 10, 1995, that his removal was being processed and would not
be stopped. Although appellant, by his account, was attempting to return
to the workplace, he failed to keep the agency apprised of his current
mailing address so that official correspondence could be sent to him.
Rather, appellant waited until July 18, 1995, apparently after his health
insurance carrier informed him that his coverage had been terminated,
to contact agency officials directly to ascertain his status. Under the
circumstances, the Commission finds that appellant had notice of his
removal such that a reasonable person acting diligently to preserve his
rights would have contacted an EEO Counselor following the January 1995
notification of the impending removal.
The Commission further finds that appellant had reason to suspect that
his removal was motivated by discriminatory animus. In his July 18,
1995, letter to the agency, appellant stated that he had been subjected
to discriminatory conduct by his supervisor during July-August 1994
(shortly before he stopped work) in the form of harassment, including
racial slurs. Appellant further identified an incident which he opined
was �an all out effort to get me fired.� Accordingly, the Commission
concludes that not only was appellant aware of his removal in January
1995, but that appellant also had reason to suspect that his removal was
discriminatory. Appellant's contact with an EEO Counselor on August 22,
1995, therefore was untimely. Further, despite having the opportunity to
do so, appellant has not submitted evidence to show that he was either
physically or mentally so incapacitated that he could not contact an
EEO Counselor prior to August 22, 1995.<1>
CONCLUSION
Based upon a thorough review of the record, and for the foregoing reasons,
it is the decision of the Equal Employment Opportunity Commission to
AFFIRM the final agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if 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
to 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. 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:
November 13, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1Appellant stated that he was hospitalized May 8 through June 2, 1995,
but did not address his condition prior or subsequent to that time.