Edward M. Kafka, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 23, 2004
01a45567 (E.E.O.C. Nov. 23, 2004)

01a45567

11-23-2004

Edward M. Kafka, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Edward M. Kafka v. United States Postal Service

01A45567

November 23, 2004

.

Edward M. Kafka,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A45567

Agency No. 1J-631-0032-04

DECISION

Complainant filed a timely appeal with this Commission from a final

agency decision, dated July 21, 2004, pertaining to his complaint of

unlawful employment discrimination in violation of Title VII of the Civil

Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.

The Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.

On June 7, 2004, complainant contacted the EEO office regarding claims

of discrimination based on race, sex and in reprisal for prior protected

activity.<1> Informal efforts to resolve complainant's concerns were

unsuccessful. On June 24, 2004, complainant filed the instant formal

complaint.

In its final decision, dated July 21, 2004, the agency determined that

complainant's complaint was comprised of the following claim:

on May 28, 2004, complainant learned of other craft and management

employees being reinstated or not terminated for records of credit card

fraud, sexual harassment, and other crimes or violations worse than his,

but that complainant's request for reinstatement to his previous position

(prior to his being removed effective 2/6/04) was denied.

The agency dismissed the complaint on the grounds of untimely EEO

Counselor contact. The agency found that complainant did not give �any

rational reason� for his delayed contact. According to the agency,

complainant �did nothing at the time that [he] was issued the notice of

removal dated December 29, 2003, which was to be effective February 6,

2004, to diligently ascertain the necessary facts to support a claim

of discrimination.� The agency noted that complainant waited until the

discovery of potential comparative employee evidence to contact the EEO

Counselor, approximately 77 days after his removal.

On appeal, complainant argues that because he is not working for the

agency, �it takes time for me to become knowledgeable about situations

that are germane to my Case.� Complainant contends that as soon as

he learns of information �that is relevant to my Cause�, he files a

complaint. According to complainant, he did not discover discriminatory

facts and evidence until May 28, 2004.

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 he was not notified of the

time limits and was not otherwise aware of them, that he did not know

and reasonably should not have known that the discriminatory matter or

personnel action occurred, that despite due diligence he was prevented

by circumstances beyond his control from contacting the Counselor within

the time limits, or for other reasons considered sufficient by the agency

or the Commission.

In his formal complaint, complainant himself identified the date of

the discriminatory event as December 29, 2003, the date of a Notice

of Removal. Moreover, complainant stated that on May 28, 2004 he �was

made aware of and verified� (emphasis added) illegal actions taken

against him: that although he was removed due to attendance reasons,

other employees who were also removed for attendance problems were

later reinstated. However, the Commission has found that since the

limitation period for contacting an EEO Counselor is triggered by the

reasonable suspicion standard, waiting until one has �supporting facts�

or �proof� of discrimination before initiating a complaint can result in

untimely Counselor contact. See Bracken v. United States Postal Service,

EEOC Request No. 05900065 (March 29, 1990). Consequently, we find that

complainant should have reasonably suspected discrimination more than

forty-five days before his May 28, 2004 contact.

Accordingly, the agency's decision dismissing the instant complaint on

the grounds of untimely EEO Counselor contact was proper and 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

November 23, 2004

__________________

Date

1The EEO Counselor's report cites June 7, 2004 as the date of initial EEO

Counselor contact; however, the agency refers to May 28, 2004 as the

date complainant made contact. The Commission notes that this ten-day

disparity does not affect our disposition of this case.