01a33875
12-01-2003
Frank A. Costello v. United States Postal Service
01A33875
December 1, 2003
.
Frank A. Costello,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A33875
Agency No. 1-B-069-0014-03
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision dated May 22, 2003, dismissing his complaint of unlawful
employment discrimination brought pursuant to Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
According to the record, the agency issued complainant a notice of removal
on October 4, 2001, effective November 5, 2001. Complainant filed a union
grievance on this matter, which resulted in an arbitration decision on
March 3, 2003, finding that complainant was removed for just cause, and
denying the grievance. The agency terminated complainant's employment
on March 11, 2003.
On March 13, 2003, complainant initiated contact with an EEO Counselor,
claiming that his discipline (removal) was in reprisal for prior protected
activity, noting that a co-worker who was also involved in the incident
resulting in his removal was not disciplined. Complainant contends that
the arbitrator reached the wrong decision based on mis-statements of
a management official, claiming that he was removed from employment as
a consequence. Complainant filed his formal complaint on April 26, 2003.
In its final decision, the agency dismissed the complaint on the grounds
of untimely EEO Counselor contact. Specifically, the agency determined
that this contact occurred approximately 16 months after he received
his notice of termination. Moreover, the agency found that this time
limit could not be tolled pending the outcome of the grievance process.
The instant appeal followed.
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.
After careful review, based on the legal standards set forth above, we
concur with the agency that complainant should have reasonably suspected
discrimination when he received his notice of removal in October 2001,
such that his EEO Counselor contact on March 13, 2003 is clearly untimely.
Moreover, we also concur with the agency that complainant presents no
justification to extend the time limit. In this regard, we find that the
Commission has consistently held that pursuit of the grievance process
will not toll this time limit. See Council v. U.S. Postal Service,
EEOC Appeal No. 01A11255 (March 9, 2001).
Accordingly, for the reasons set forth above, we find that the
agency properly dismissed the captioned complaint, and we AFFIRM that
determination.
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
December 1, 2003
__________________
Date