01982335
02-23-1999
Joseph A. Hihn, Jr., Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Midwest Region), Agency.
Joseph A. Hihn, Jr. v. United States Postal Service
01982335
February 23, 1999
Joseph A. Hihn, Jr., )
Appellant, )
)
v. ) Appeal No. 01982335
) Agency No. 1-I-631-0147-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Great Lakes/Midwest Region), )
Agency. )
______________________________)
DECISION
Based on a review of the record, we find that the agency properly
dismissed appellant's complaint, pursuant to EEOC Regulation 29 C.F.R. �
1614.107(b), for failure to initiate timely contact with an Equal
Employment Opportunity Counselor (EEO counselor). Appellant alleged
that he was discriminated against on the basis of race (Caucasian)
when he was denied an upgrade from a Level 4 to a Level 5 pay grade.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the EEO 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 Ball v. USPS, EEOC Request No. 05880247 (July 6, 1988).
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.
On June 29, 1997, appellant was denied an upgrade from his Level 4
Mail Handler position to a Level 5 Equipment Operator position. The EEO
counselor's report states that the date of appellant's initial contact
with an EEO counselor was September 10, 1997, seventy three (73) days
after the denial of the upgrade. In its Final Agency Decision (FAD),
the agency found that appellant was or should have been aware of the
time limits for contacting an EEO counselor because no less than ten EEO
posters were located throughout the post office building where appellant
was employed, and the posters provided specific notice to employees
regarding the specific time limits for contacting an EEO counselor.
On appeal, appellant references a negotiated grievance he filed and
states that the date which should be considered determinative is July
31, 1997, the date of the Denial Letter he received after his grievance
was reviewed and denied by management. Appellant contends that July 31,
1997, is the date that he first became aware of the discriminatory nature
of the act. We note, however that the use of the negotiated grievance
procedure does not toll the time limit for contacting an EEO counselor.
Schermerhorn v. USPS, EEOC Request No. 05940729 (February 10, 1995).
As such, appellant is required to pursue an EEO complaint in a timely
manner notwithstanding his use of the agency's grievance process.
Appellant has not alleged other extenuating circumstances which would
afford him relief from the applicable time limitations. Because appellant
did not initiate contact with an EEO counselor until more than forty-five
(45) days from the date he was denied an upgrade, we find that the
agency's decision to dismiss his complaint pursuant to 29 C.F.R. �
1614.107(b) was proper.
Accordingly, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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.
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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.F.R.). 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:
02-23-99
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations