01986567
09-14-1999
Craig M. Ploucher, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Craig M. Ploucher v. United States Postal Service
01986567
September 14, 1999
Craig M. Ploucher, )
Appellant, )
)
v. ) Appeal No. 01986567
) Agency No. 4-C-190-0128-98
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On August 28, 1998, appellant filed a timely appeal of a final
agency decision, which was received by appellant on July 31, 1998,
dismissing a portion of the allegation in his complaint, pursuant to 29
C.F.R. �1614.107(b), due to untimely EEO Counselor contact.
In its final decision, the agency identified the allegation of appellant's
May 4, 1998 complaint as whether appellant was discriminated against
based on his race (Caucasian), color (white), sex (male), and age
(DOB: 9-27-47) when since January 1998, management did not allow
him to change his starting time to 5:30 a.m., while other carriers,
including the utility person for appellant's route, were allowed to
start work earlier. The agency accepted a portion of the allegation
occurring since January 31, 1998, for investigation. The agency,
however, dismissed the remaining portion of the allegation occurring
from an unspecified date in January 1998, up through January 30, 1998,
since appellant did not contact an EEO Counselor until March 17, 1998,
which was beyond the 45-day time limit set by the regulations.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of
discrimination be brought to the attention of the EEO Counselor within
45 days of the alleged discriminatory event, or the effective date of
an alleged discriminatory personnel action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the limitation period
is triggered under the EEOC Regulations. See 29 C.F.R. �1614.105(a)(2);
Ball v. United States Postal Service, EEOC Request No. 05880247 (July 6,
1988). Thus, the limitations period is not triggered until a complainant
should reasonably suspect discrimination, but before all the facts that
would support a charge of discrimination have become apparent.
On appeal, appellant contends that there is no EEO poster on his work
area although there is one on his work floor (the first floor) which is
divided into several work areas. In this regard, the agency submits an
affidavit from an agency employee attesting that EEO posters, including
the 45-day time limit to contact an EEO Counselor, are displayed on
bulletin boards on each work floor (the first, second, third, fourth,
and fifth floors) at the time of the alleged incident. There is no
evidence to indicate that appellant did not have access to the poster.
We note that it is the Commission's policy that constructive knowledge
will be imputed to an employee when an employer has fulfilled its
obligation of informing employees of their rights and obligations under
Title VII. Thompson v. Department of the Army, EEOC Request 05910474
(September 12, 1991). Based on the foregoing, we find that appellant
had constructive knowledge of the requisite time limit to timely contact
an EEO Counselor since the record clearly indicates that the agency has
fulfilled its obligation of informing its employees of their EEO rights
by posting an EEO poster, which included the 45-day time limit, on the
bulletin board of his work floor at the time of the alleged incident.
In addition, appellant also contends that he had no reason to contact an
EEO Counselor until he received an answer from his supervisor for the
starting time change and he did not have "access to this information."
In this regard, appellant indicated in the Information for Precomplaint
Counseling form, which is contained in the record, that in January
1998, he, through his shop steward, was told by the supervisor that
he could not begin work at 5:30 a.m. because he did not work as fast
as the other carriers when starting earlier. Furthermore, we note
that appellant clearly indicated during his EEO counseling that the
alleged discriminatory incident occurred since January 21, 1998, when
his supervisor refused to allow him to begin work at 5:30 a.m. while
at the same time, the supervisor allowed other carriers to begin work
at 5:30 a.m. Based on the foregoing, we find that appellant knew or
should have reasonably suspected discrimination when he was allegedly
denied the schedule change at issue on January 21, 1998, or sometime
in January 1998. Thus, we find that appellant's March 17, 1998 EEO
Counselor contact with regard to the alleged incident occurring from
an unspecified date in January 1998 (or January 21, 1998), up through
January 30, 1998, was untimely.
Accordingly, the agency's final decision is hereby 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. �1614.604(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. 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:
Sept. 14, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations