01992491
12-22-1999
Jorge F. Haro, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Jorge F. Haro, )
Complainant, )
)
v. ) Appeal No. 01992491
) Agency No. 1-H-324-0118-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
The Commission finds that the agency's January 6, 1999 decision
dismissing complainant's complaint on the basis of untimely EEO counselor
contact is proper pursuant to the provisions of 64 Fed. Reg. 37,644,
37,656 (1999) (to be codified and hereinafter referred to as 29
C.F.R. �1614.107(a)(2).<1>
The record shows that complainant, who had been working for the agency
as a temporary employee (TE) since 1995, sought EEO counseling on August
28, 1998, alleging that he had been discriminated against on the basis
of reprisal on July 16, 1998. Complainant specifically alleged that
after reviewing his official personnel folder (OPF), he found out that
a portion of an agency form (Form 2485) had not been properly completed.
Subsequently, complainant filed a formal complaint alleging that he had
been discriminated against on the basis of reprisal when in July 1997,
he was required to undergo a second physical examination, because he
had not passed a physical examination in 1995.<2> Complainant also
alleged that after having taken the physical examination in July 1997,
he was hired for the position in question effective April 11, 1998.
He further alleged that he reviewed his OPF on July 16, 1998, when he
determined that the PS Form 2485 filled out in 1995, was incomplete.
Specifically, complainant alleged that upon reviewing the PS Form 2485,
he realized that the form had been incompletely prepared by an agency
official in 1995, and that the agency official's purported omission
resulted in complainant having to undergo a second physical examination
in July 1997.
The agency issued a final decision dismissing the complaint on the grounds
of untimely EEO counselor contact. On appeal, complainant contends that
he needed �proof to sustain [his] claim, proof that unfortunately the
[agency] did not make available to [him] at an earlier date�.
The Commission applies a "reasonable suspicion" standard to the
triggering date for determining the timeliness of the contact with an
EEO counselor. Cochran v. United States Postal Service, EEOC Request
No. 05920399 (June 18, 1992). Under this standard, the time period for
contacting an EEO counselor is triggered when the complainant should
reasonably suspect discrimination, but before all the facts that would
support a charge of discrimination may have become apparent. Id.;
Paredes v. Nagle, 27 FEP Cases 1345 (D.D.C. 1982).
A review of the record shows that in July 1997, complainant was asked
to submit to a physical examination as part of the requirements for
a position to which he had applied. Complainant acknowledged that he
informed the agency that he had already undergone a physical examination
in 1995. The record further shows that complainant was then told by
agency officials that he had not passed his physical in 1995, that hiring
him under such circumstances had been a �favor,� and that he would need
to submit to a physical examination in order to be considered for the
position in question. Finally, the record shows that effective April 11,
1998, complainant was hired for the position in question.
Based on the foregoing, we find that complainant should have reasonably
suspected discrimination within 45 days of being advised to submit
for another physical examination in July 1997, when he was informed
that his hire in 1995, without having passed a physical examination,
had purportedly been a favor. Instead, complainant did not seek EEO
counseling until August 28, 1998, well beyond the applicable time limit.
Complainant has not alleged that he was unaware of his EEO rights or
that he was not aware of the applicable time limits for initial EEO
counselor contact. Based on the foregoing, we find that the agency's
decision dismissing the complaint on the grounds of untimely EEO counselor
contact was proper and it is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
Dec. 22, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________________ ____________________________
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2 Complainant specifically alleged that he was told that the agency had
done a favor to him by hiring him despite the fact that he had not passed
the physical exam.