01984025
06-21-1999
Joseph R. Colwell, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Joseph R. Colwell v. United States Postal Service
01984025
June 21, 1999
Joseph R. Colwell, )
Appellant, )
)
v. ) Appeal No. 01984025
) Agency No. 4B-010-0014-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning his complaint of unlawful employment discrimination,
in violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791
et seq. The final agency decision was received by appellant on March
22, 1998. The appeal was postmarked April 13, 1998. Accordingly,
the appeal is timely (see 29 C.F.R. �1614.402(a)), and is accepted in
accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed a portion
of appellant's complaint as untimely.
BACKGROUND
Appellant contacted an EEO counselor on November 6, 1997, regarding
allegations of discrimination. Specifically, appellant alleged that he
was discriminated against when the agency denied him the opportunity to
work overtime beginning February 3, 1994. Informal efforts to resolve
appellant's concerns were unsuccessful. Accordingly, on March 19, 1998,
appellant filed a formal complaint alleging that he was the victim of
unlawful employment discrimination on the basis of physical disability
(back injury).
On March 20, 1998, the agency issued a final decision dismissing a
portion of appellant's complaint as untimely. In defining appellant's
complaint the agency separated appellant's allegation into two separate
time frames, namely (1) that time period outside the forty-five day
time limitation, (February 3, 1994 through September 21, 1997); and
(2) that period of time within forty-five days of appellant's counselor
contact, (September 22, 1997 to the filing date of appellant's formal
complaint). Specifically, the agency determined that any allegation
regarding overtime which occurred prior to September 22, 1997 had not
been brought to the attention of an EEO Counselor within forty-five days.
The agency rejected the theory that appellant's allegations constituted
a recurring violation beginning in February 1994 and continuing to the
date appellant's formal complaint was filed.
ANALYSIS AND FINDINGS
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 45 days of the effective date of the action. EEOC Regulation 29
C.F.R. �1614.105(a)(2) provides that "the agency shall extend the 45-day
time limit...when the individual shows...that he or she did not know and
should not have known that the discriminatory action occurred...." EEOC
Regulation 29 C.F.R. �1614.107(b) provides that an agency shall dismiss
a complaint or a portion of a complaint that fails to comply with the
applicable time limits contained in 29 C.F.R. �1614.105.
This Commission has held that where there is an issue of timeliness,
the agency always bears the burden of obtaining sufficient information to
support a reasoned determination as to timeliness. Williams v. Department
of Defense, EEOC Request No. 05920506 (August 25, 1992). Concerning
appellant's complaint, the agency has met its burden.
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 indicates that appellant
has specifically acknowledged that discrimination began in 1994 when
appellant was placed on limited duty following an injury to his back.
Therefore, appellant admits and acknowledges that he had a suspicion
of discrimination based on disability as early as 1994. Nevertheless,
appellant did not bring his allegations of discrimination to the attention
of an EEO Counselor until November 6, 1997, more than three years after
he acknowledges the discrimination began.
The courts have held that in determining whether a claim for continuing
violation is stated, it is important to consider whether appellant had
prior knowledge or suspicion of discrimination. See Sabree v. United
Brotherhood of Carpenters and Joiners Local No. 33, 921 F.2d 396 (1st
Cir. 1990). Moreover, it is necessary to distinguish between an appellant
who believed he had been subject to discrimination, and therefore had
the obligation to file promptly or lose his claim, versus a plaintiff who
is unable to appreciate that he is being discriminated against until he
has lived through a series of acts and is thereby able to perceive the
overall discriminatory pattern. Hagan v. Department of Veterans Affairs,
EEOC Request No. 05920709 (January 7, 1993). The Commission finds
that he has not stated a claim for continuing violation regarding those
allegations regarding overtime occurring prior to September 22, 1997.
Therefore, appellant has not presented evidence sufficient to justify
equitably tolling or waiving the time limits and allow him to seek EEO
counseling concerning allegation (1), beyond the time limit provided by
EEOC Regulations for said contact.
CONCLUSION
Accordingly, we find that the agency's decision dismissing allegation
(1) as defined by the FAD was proper. The agency's decision is hereby
AFFIRMED for the reasons set forth herein.
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(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 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).
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:
June 21, 1999 ____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations