Jeffrey Gilmore, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 23, 2004
01a45574 (E.E.O.C. Nov. 23, 2004)

01a45574

11-23-2004

Jeffrey Gilmore, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Jeffrey Gilmore v. United States Postal Service

01A45574

November 23, 2004

.

Jeffrey Gilmore,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A45574

Agency No. 4H-335-0135-04

DECISION

Complainant filed a timely appeal with this Commission from a final

agency decision, dated July 23, 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. ;

Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),

as amended, 29 U.S.C. � 791 et seq.; and the Age Discrimination in

Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.

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

On May 27, 2004, complainant contacted the EEO office claiming that

he was discriminated against when on May 26, 2004, he learned that

two other employees committed the same violations that were cited

in complainant's own removal notice, but that the employees were not

removed from their positions. Informal efforts to resolve complainant's

concerns were unsuccessful. On July 7, 2004, complainant filed the

instant formal complaint.

On July 23, 2004, the agency issued a final decision. Therein, the

agency dismissed complainant's complaint on the grounds of untimely

EEO Counselor contact. The agency noted that complainant claimed he

was removed from agency employment on May 26, 2004, per a PS Form 50.

However, the agency stated that complainant's last day in a pay status

was January 31, 2003. According to the agency, a form identified as

�Form SF-8" was issued on May 26, 2004, regarding complainant's benefits,

and that May 26, 2004, was not the effective removal date. The agency

stated that agency policy provides for the retention of ex-employees

�on the rolls� until the termination of pending union grievances, so

that a grievant can maintain certain benefits. Therefore, the agency

determined that complainant's May 27, 2004 contact was approximately 17

months after the effective date of his removal in January 2003.

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.

The record contains a letter dated January 9, 2003, informing complainant

that he would be removed from the Postal Service effective January

31, 2003. Complainant stated in his pre-complaint counseling form

that on May 26, 2004, �it was brought to [his] attention� that two

other employees were not removed for committing the same violations.

Similarly, in his formal complaint, complainant cited May 26, 2004,

as the date of the alleged discrimination. However, the Commission

determines that complainant did not explain precisely what transpired

on May 26, 2004, to first trigger a reasonable suspicion of unlawful

employment discrimination. Moreover, complainant did not provide any

evidence to support his references to this later date.

Instead, the record shows that complainant's removal was effective January

31, 2003, and that he waited over a year to contact the EEO Counselor,

in May 2004. The Commission has consistently held that complainants must

act with due diligence in the pursuit of their claims or the doctrine

of laches may be applied. See O'Dell v. Department of Health and Human

Services, EEOC Request No. 05901130 (December 27, 1990). The doctrine

of laches is an equitable remedy under which an individual's failure to

diligently pursue his actions could bar his claim. Because complainant

did not act with reasonable diligence in contacting the EEO Counselor,

the doctrine of laches requires dismissal of his complaint.

Accordingly, the agency's final decision dismissing the 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