01A23282_r
05-02-2003
Darryl R. Booker, et al. Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Darryl R. Booker, et al. v. United States Postal Service
01A23282
May 2, 2003
.
Darryl R. Booker, et al.
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A23282
Agency No. CC-630-0079-01
Hearing No. 280-A1-4294X
DECISION
Complainant, as class agent, filed a timely appeal with this Commission
from an agency final action dated April 24, 2002, dismissing the
captioned complaint. Complainant filed the captioned complaint pursuant
to Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. � 2000e et seq., claiming discrimination on the basis of race
(African-American).
The agency referred the complaint to an EEOC Administrative Judge (AJ)
to render a determination on class certification of the complaint.
The AJ defined the class as African-American employees who have been
disciplined in the last eight years and/or have not been provided with
the same promotional and/or entry level opportunities as employees
outside the protected group. In a decision dated April 2, 2002, the
AJ determined that complainant failed to meet any of the prerequisites
(typicality, numerosity, commonality and adequacy of representation)
for a class action complaint. See 29 C.F.R. � 1614.204(a)(2).
The agency's April 24, 2002 final action adopted the AJ's decision.
Additionally, the agency dismissed complainant's complaint pursuant to
the regulation set forth at 29 C.F.R. � 1614.107(a)(2), for untimely EEO
Counselor contact. Specifically, the agency stated that complainant
failed to identify any incident of alleged discrimination regarding
discipline, equal employment with respect to initial job assignments,
promotions, and other conditions of employment occurring within 45-days of
contacting an EEO Counselor. On appeal, complainant raises no arguments
regarding the timeliness of his EEO Counselor contact.
The EEO Counselor's Report states that complainant first requested
counseling on January 1, 2001. The EEO Counselor's Report does not
identify a date of incident. According to the EEO Counselor's Report,
complainant was unable to provide the dates of the alleged discriminatory
disciplinary practices. The EEO Counselor's Report also noted that
complainant stated that he was not disciplined within 45-days of
contacting the EEO Office and he was not sure whether any of the
identified class members were disciplined within 45-days of EEO contact.
On complainant's pre-complaint counseling form he identifies December 27,
2000 as the date of the alleged discriminatory activity which prompted
him to seek counseling. Complainant states that on December 27, 2000,
he informed management of a Caucasian carrier who left a vehicle running
while delivering a parcel and that Black carriers are disciplined more
harshly than Caucasian carriers for similar offenses. The record contains
a copy of complainant's May 18, 2001 formal complaint and attachments.
The formal complaint does not identify a date on which the alleged
discrimination took place.
A complainant must raise claims of discrimination within forty-five (45)
days of their occurrence. See 29 C.F.R. � 1614.105(a)(1). The agency
may dismiss claims that fail to comply with this time limit. See 29
C.F.R. � 1614.107(a)(2). 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.
Upon review, we find the agency's dismissal of complainant's complaint
for untimely EEO Counselor contact was proper. The record indicates
that complainant made initial EEO contact on January 1, 2001; however,
he failed to show that he or any of the four named class members
were subjected to an alleged discriminatory incident occurring within
the applicable 45-day limitation period. Furthermore, we find that
complainant should have reasonably suspected discrimination more than
45 days before he contacted an EEO Counselor.
Accordingly, the agency's final action dismissing the class and individual
complaints for untimely EEO Counselor contact is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 2, 2003
__________________
Date