01986479
09-10-1999
Daniel C. Porter, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Daniel C. Porter v. United States Postal Service
01986479
September 10, 1999
Daniel C. Porter, )
Appellant, )
)
v. ) Appeal No. 01986479
) Agency No. 4-D-280-0099-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On August 20, 1998, appellant filed a timely appeal of a final agency
decision, which was dated August 13, 1998, dismissing 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
July 14, 1998 complaint as whether appellant was discriminated against
when on December 6, 1997, to present he had been assigned to the Monkey
Junction Station doing nixie mail with very unusual hours. The agency
stated that the alleged discriminatory action took place on December 6,
1997, but appellant did not contact an EEO Counselor until March 9,
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.
The record indicates that on December 2, 1997, appellant was notified of
the alleged discriminatory change of work schedule, including his duty
station at the Monkey Junction Station, effective December 6, 1997, and
he had been working in that schedule ever since. On appeal, appellant
contends that he was not aware of the 45-day time limit. The Commission
has held 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). The record contains
an affidavit of a management official verifying that an EEO notice,
including the 45-day time limit, was posted at appellant's work place
at the time of the alleged incident. Thus, appellant had a constructive
knowledge of the 45-day time limit to timely contact an EEO Counselor.
Appellant also contends on appeal that he did not know that he was
discriminated against at the time of the alleged incident. Upon review,
we find, however, that appellant knew or should have reasonably suspected
discrimination when he received the alleged discriminatory schedule
change notice on or around December 2, 1997, or on December 6, 1997,
the effective date of that change. Appellant further indicates that
he unsuccessfully tried to informally resolve the matter within the
agency without filing an EEO complaint. The Commission has held that
the internal appeal of an agency action does not toll the running of
the limitation period. See Hosford v. Veterans Administration, EEOC
Request No. 05890038 (June 9, 1989). Based on the foregoing, we find
that appellant has not presented adequate justification for an extension
of the applicable time limit for contacting an EEO Counselor pursuant
to 29 C.F.R. �1614.105(a)(2).
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. 10, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations