01992350
11-18-1999
Joseph P. Lukaszek, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Joseph P. Lukaszek, )
Complainant, )
)
v. ) Appeal No. 01992350
) Agency No. 4-B-120-0011-99
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
The Commission finds that the agency's December 28, 1998 decision
dismissing Complainant's complaint on the basis that Complainant failed
to contact an EEO counselor in a timely manner is proper pursuant to
the provisions of 29 C.F.R. �1614.107(a)(2).
The record shows that on June 23, 1997, Complainant's supervisor provided
an evaluation/rating of Complainant's work performance. Complainant had
requested to be transferred to the Albany Post Office and said evaluation
was part of the pre-employment investigation. By letter dated June 27,
1997, Complainant's request for a transfer was denied. By letter dated
May 20, 1998, Complainant asked his supervisor to provide a written
reply to the June 23, 1997 evaluation. On May 27, 1998, Complainant's
supervisor informed him that �the reasoning for my evaluation was based
on my personal observations of your work performance ...�
On June 2, 1998, Complainant sought EEO counseling alleging that he had
been discriminated against on the basis of sex (male) when on May 29,
1998, he became aware that his supervisor would not change the June 23,
1997 evaluation. Subsequently Complainant filed a formal complaint
alleging that he had been discriminated against on the basis of sex
when on may 27, 1998, his �supervisor's supervisor rendered separate
and contradictory employee evaluations four years apart based on whistle
blowing safety retaliation resulting in a denial of a transfer to Albany
district�.
The agency issued a final decision dismissing the complaint on the grounds
of untimely EEO counselor contact. The agency found that Complainant
had reasonable suspicion of discrimination on June 27, 1997, when he
was denied the transfer.
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). The record shows that
on June 23, 1997, Complainant was evaluated and that on June 27, 1997,
he was denied a transfer to the Albany district. Eleven months after
these incidents, by letter dated May 20, 1998, Complainantrequested his
supervisor to provide a written reply to the June 23, 1997 evaluation.
Based on these circumstances we find that Complainant should have
reasonably suspected discrimination on June 27, 1997, when he was
denied the transfer in question. Accordingly, he should have sought EEO
counseling within 45 days of said denial. The fact that on May 20, 1998,
Complainant asked his supervisor to reply or explain the June 23, 1997
evaluation does not toll the 45-day time limit for initial EEO counselor
contact because the Commission has specifically held that internal efforts
or appeals of an agency's adverse action and/or the filing of a grievance
do not toll the running of the time limit to contact an EEO counselor.
See Hosford v. Department of Veterans Affairs, EEOC Request No. 05890038
(June 9, 1989). Accordingly, the agency's final decision was proper
and 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).
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 consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (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).
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:
November 18, 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:
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