01A31940_r
05-20-2003
Donald Miller, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Donald Miller v. United States Postal Service
01A31940
May 20, 2003
.
Donald Miller,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A31940
Agency No. 1F-914-0023-03
DECISION
Complainant appealed to this Commission from a December 27, 2002 agency
decision dismissing his complaint on the grounds of untimely EEO Counselor
contact. In his complaint, complainant alleged that he was subjected to
discrimination on the bases of sex, disability, and age when after his
reinstatement on May 18, 2002, he was not placed in a step consistent
with his previous step and is therefore receiving a lower salary.
In dismissing the complaint, the agency noted that the alleged
discriminatory event occurred on May 18, 2002, and that complainant did
not initiate EEO counseling until October 8, 2002.<1> The agency rejected
October 2002, as the date when complainant suspected discrimination.
On appeal, complainant stated that he wrote letters to the agency's
personnel office and the manager of human services and that he also filed
a grievance. He further stated that he did not suspect discrimination
until October 10, 2002, when he learned that two employees were reinstated
to their previous high steps after quitting their agency jobs and later
returning.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the EEO 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 limitation period
for contacting an EEO Counselor is triggered by the reasonable suspicion
standard.
Complainant did not initiate EEO Counselor contact until October 2002,
regarding the May 18, 2002 alleged discrimination. Therefore, the
contact was beyond the 45-day limitation period and complainant has not
offered adequate justification to warrant an extension of the time limit.
The record discloses that on June 24, 2002, and July 8, 2002, complainant
wrote the agency inquiring about his salary and requesting a higher step.
He was informed in a July 25, 2002 letter that his request was denied.<2>
At the very latest, complainant should have suspected discrimination by
July 2002, when his request was denied. Waiting until one has �supporting
facts� or �proof� of discrimination before initiating a complaint, may
result in untimely EEO Counselor contact. See Bracken v. United States
Postal Service, EEOC Request No. 05900065 (March 29, 1990).
Accordingly, the agency's final decision dismissing complainant's
complaint 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 20, 2003
__________________
Date
1The Commission notes that although the agency
identifies October 8, 2002, as the date when complainant initiated
contact in its decision, the Counselor's Report on which the agency
relies for that date, and a December 4, 2002 letter in the Counselor's
Report identify October 18, 2002, as the date of initial contact.
2We note that the Commission has consistently held that utilization of
internal agency procedures, union grievances, and other remedial processes
does not toll the time limit for contacting an EEO Counselor. See Kramer
v. U.S. Postal Service, EEOC Appeal No. 01954021 (October 5, 1995).