01A33421_r
08-22-2003
Hoan Ho, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Hoan Ho v. United States Postal Service
01A33421
August 22, 2003
.
Hoan Ho,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A33421
Agency No. 4F-940-0072-03
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely
EEO Counselor contact.
On January 6, 2003, complainant initiated contact with an EEO Counselor
claiming that he suffered discrimination on the bases of race (Asian)
and national origin (Vietnam). Informal efforts to resolve his concerns
were unsuccessful.
Subsequently, complainant filed a complaint claiming that he was
subjected to discrimination when on September 13, 2000, he was issued
a Notice of Removal which became effective October 16, 2000, charging
him with Absence Without Official Leave (AWOL). Complainant further
alleged that this wrongful termination resulted from management failing
to investigate flyers left in his work area on July 7, 8 and 10, 2000,
which read �No Ho Area.�
In its final decision dated April 17, 2003, the agency dismissed
the complaint on the grounds that complainant initiated contact
with an EEO Counselor in an untimely fashion, pursuant to 29 C.F.R. �
1614.107(a)(2). Specifically, the agency concluded that complainant waited
over two years after the allegedly discriminatory events occurred to
contact an EEO Counselor. The agency further concluded that EEO posters
outlining the proper procedures for EEO Counselor contact are on display
at the facility where complainant was employed.
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.
The Commission has consistently held that a complainant must act with
due diligence in the pursuit of his claim or the doctrine of laches may
apply. See O'Dell v. Department of Health and Human Services, EEOC Request
No. 05901130 (December 27, 1990). In the instant case, the Commission
finds the doctrine of laches applicable. Specifically, we find that,
the record discloses that the alleged discriminatory event occurred on
September 13, 2000, but that complainant did not initiate contact with
an EEO Counselor until January 6, 2003, which is beyond the forty-five
(45) day limitation period. Because complainant waited approximately
over two years to bring his claims to the agency's attention, he failed
to act with due diligence. On appeal, complainant has presented no
persuasive arguments or evidence warranting an extension of the time
limit for initiating EEO Counselor contact. Accordingly, the agency's
final decision dismissing the complaint is hereby 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
August 22, 2003
__________________
Date