01990570
12-10-1999
Bryant F. Blackmon, Jr., Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Bryant F. Blackmon, Jr., )
Complainant, )
)
v. )
) Appeal No. 01990570
William J. Henderson, ) Agency No. 4-H-370-0141-98
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On October 24, 1998, complainant filed a timely appeal with this
Commission from a final agency decision (FAD), dated September 24,
1998, dismissing his complaint for untimely counselor contact.<1> The
Commission accepts the appeal in accordance with EEOC Order No. 960,
as amended.
On May 1, 1998, complainant contacted the EEO office regarding claims
of discrimination based on race (African American), physical disability
(back), and age (51). Informal efforts to resolve complainant's concerns
were unsuccessful. Accordingly, on July 14, 1998, complainant filed a
formal complaint.
The agency issued a FAD dismissing complainant's complaint for untimely
counselor contact. The FAD framed complainant's claim as follows: On
May 1, 1998 complainant became aware that he was treated differently
in the rehabilitation job offer made to him and was forced to accept
in March 1995. The agency indicated that the alleged discriminatory
event occurred in March 1995, but that complainant did not contact
the EEO counselor until 1,095 days later. The agency determined that
complainant knew or should have known about the time limitations from
EEO posters on display at his workplace and from the EEO information
provided during training for new employees.
On appeal, with regard to timeliness, complainant argues that he recently
discovered local post office management treated others differently.
Further, he contends that his medication often keeps his �mind altered.�
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.
In the instant case, the Commission finds that complaint should have
reasonably suspected discrimination more than forty-five days before
his initial EEO Counselor contact on May 1, 1998. The record contains a
copy of a letter, dated February 3, 1998, to complainant's Congressional
representative. Therein, complainant stated that �[t]his pertains to the
ongoing discrimination problems I am experiencing at my work place.�
Complainant described his claim and notes that he is �considering
filing an EEO complaint....� Therefore, we find that complainant was
aware of the alleged discrimination more than forty-five days prior
to contacting the EEO office. Moreover, complainant does not contend
that he was unaware of the time limitation. Accordingly, we find that
complainant's contact was untimely and no sufficient reason for extending
the time limitation has been provided. The agency's decision to dismiss
the complaint was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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 (S1199)
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 (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:
December 10, 1999
____________________________
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 Assistant
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.