0120093655
12-17-2009
Jesse Boykin, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jesse Boykin,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120093655
Agency No. 4F-940-0084-09
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated June 25, 2009, dismissing his formal 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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.
On April 8, 2009, complainant initiated EEO Counselor contact.
Informal efforts to resolve his concerns were unsuccessful.
On May 26, 2009, complainant filed the instant formal complaint. Therein,
complainant claimed that he was subjected to discrimination on the bases
of race, color, age and in reprisal for prior EEO activity when1:
1. he was issued a Letter of Decision-Reduction in Grade and/or Pay
dated August 19, 2005 (effective September 3, 2005);
2. he was issued a Letter of Decision-Reduction in Grade dated March 24,
2006 (effective April 1, 2006); and
3. on October 27, 2005, March 3, 2006 and December 7, 2008, he was issued
Letters of Demand.
In its June 25, 2009 final decision, the agency dismissed complainant's
complaint pursuant to 29 C.F.R. � 1614.107(a)(2), on the grounds of
untimely EEO Counselor contact. The agency determined that complainant's
initial EEO Counselor contact occurred on April 8, 2009, which it found to
be beyond the 45-day limitation period. The agency also dismissed claim
1 on the alternative grounds of stating the same claim that is pending
before or has been decided by the agency or Commission, pursuant to 29
C.F.R. � 1614.107(a)(1). The agency dismissed claim 2 on the alternative
grounds for raising the same matter in an appeal with the Merit Systems
Protection Board (MSPB) pursuant to 29 C.F.R. � 1614.107(a)(4).
On appeal, complainant, through his representative, argues that his April
8, 2009 EEO contact was timely. Complainant specifically argues that it
was not until March 26, 2009 when he became aware that a white supervisor
was not held responsible for shortages. Specifically, complainant states
that he was downgraded for shortage while the white supervisor was not.
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 the instant case, the Commission determines that the agency properly
dismissed the instant complaint on the grounds of untimely EEO Counselor
contact. We find that complainant, a former supervisor, had, or should
have had a reasonable suspicion of discrimination more than forty-five
days before his initial April 8, 2009 EEO contact.
Moreover, 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 Becker v. United States Postal Serv., EEOC
Appeal No. 01A45028 (November 18, 2004) (finding that the doctrine of
laches applied when complainant waited over two years from the date of
the alleged discriminatory events before contacting an EEO Counselor);
O'Dell v. Department of Health and Human Serv., EEOC Request No. 05901130
(December 27, 1990). The doctrine of laches is an equitable remedy under
which an individual's failure to pursue diligently his course of action
could bar his claim. Complainant waited over approximately three years
from the date of the alleged discriminatory event before he contacted
an EEO Counselor contact on April 8, 2009. Complainant has not provided
sufficient justification for extending or tolling this time limit.
Accordingly, the agency's final decision dismissing complainant's
complaint is AFFIRMED.2
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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 17, 2009
__________________
Date
1 For ease of reference, the Commission has numbered complainant's claims
as claims 1 - 3.
2 Because we affirm the agency's dismissal of claims 1 - 2 for the reason
stated herein, we find it unnecessary to address alternative procedural
grounds.
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0120093655
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120093655