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.