01991191
12-10-1999
Mandalla C. Bey, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Mandalla C. Bey v. United States Postal Service
01991191
December 10, 1999
Mandalla C. Bey, )
Complainant, )
)
v. ) Appeal No. 01991191
) Agency No. 1-C-441-0172-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On November 24, 1999, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) dated November 2, 1999,
pertaining to his complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.<1> In his complaint, complainant alleged that
he was subjected to discrimination on the basis of sex (male) when on
or about June 11, 1998, he became aware that on an unspecified date
in June 1994 through June 1997, several East Dock female mail handlers
had been given assistance performing the sack-sorter-loader assignment
while that same assistance normally was not extended to complainant;
and, consequently, in April 1997, complainant suffered an injury while
working the sack-sorter-loader operation.
The agency dismissed the claim for untimely counselor contact.
Specifically, the agency found that complainant requested counseling
on June 24, 1998, over four years after the incident alleged, and over
one year after complainant's on-the-job injury. The agency noted that
complainant presented no evidence that he lacked a reasonable suspicion
of discrimination at the time the incidents occurred.
On appeal, complainant argues that he had no contact with the
East Dock workers prior to his transfer there on March 29, 1997.
Further, complainant claims that he was injured while performing
the sack-sorter-loader operation on April 1, 1997, and did not learn
of the disparate treatment during his brief stay on the East Dock.
Complainant contends that he learned in June 1998, that female workers
were routinely given assistance in performing the task while male workers
are not afforded any assistance.
In response, the agency contends that complainant waited to gather
supporting facts for his claim before contacting a counselor. The agency
notes that complainant filed several "Reports of Hazard," beginning
on March 23, 1998, but failed to seek counseling for several months,
despite his reasonable suspicion of wrongdoing.
The record includes a copy of complainant's Information-for-
Precomplaint-Counseling form, dated June 24, 1998. On this form,
complainant contends that he learned female employees were receiving
favorable treatment at the East Dock on June 11, 1998. The record also
includes three Report-of-Hazard forms. The reports all state that the
sack-sorter-loader is unsafe for one person to operate, but none mention
whether preferential treatment is given to females. To the contrary,
the reports refer to the unsafe condition that "he or she" must endure
when operating the machinery alone.
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 (Feb. 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.
The date that complainant realized the sack-sorter-loader operation was
unsafe is irrelevant to determining the date he reasonably suspected
discrimination. The operative date for triggering the limitations period
is the date that he reasonably suspected (or should have reasonably
suspected) discrimination. Prior to hearing from a co-worker that female
employees were assisted with the sack-sorter-loader, complainant had no
reason to suspect discrimination. See Montano v. United States Postal
Service, EEOC Request No. 05970890 (June 17, 1999) (reasonable suspicion
triggered not when complainant was terminated, but when complainant
learned that other employees who took part in the same conduct were not
terminated). The time limitations period did not begin to run until he
had reason to suspect the disparate treatment that he later alleged.
Where, as here, there is an issue of timeliness, "[a]n agency always bears
the burden of obtaining sufficient information to support a reasoned
determination as to timeliness." Guy, v. Department of Energy, EEOC
Request No. 05930703 (Jan. 4, 1994) (quoting Williams v. Department of
Defense, EEOC Request No. 05920506 (Aug. 25, 1992)). In addition,
in Ericson v. Department of the Army, EEOC Request No. 05920623
(Jan. 14, 1993), the Commission stated that "the agency has the burden
of providing evidence and/or proof to support its final decisions." See
also Gens v. Department of Defense, EEOC Request No. 05910837 (January
31, 1992). In the present case, the agency has presented no evidence
that complainant had a reasonable suspicion of discrimination prior to
being told that female employees were given assistance while he received
none. Complainant contends, and the agency fails to contradict, that he
never saw anyone obtain assistance to operate the sack-sorter-loader.
Therefore, complainant did not reasonably suspect discrimination until
June 11, 1998, less than forty-five days prior to contacting an EEO
Counselor.
CONCLUSION
Accordingly, the agency's decision is REVERSED, and the complaint is
REMANDED for further investigation.
ORDER (E1199)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge to
the complainant that it has received the remanded claims within thirty
(30) calendar days of the date this decision becomes final. The agency
shall issue to complainant a copy of the investigative file and also shall
notify complainant of the appropriate rights within one hundred fifty
(150) calendar days of the date this decision becomes final, unless the
matter is otherwise resolved prior to that time. If the complainant
requests a final decision without a hearing, the agency shall issue
a final decision within sixty (60) days of receipt of complainant's
request.
A copy of the agency's letter of acknowledgment to complainant and an
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to the
complainant. If the agency does not comply with the Commission's order,
the complainant may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The complainant also has the right to file a
civil action to enforce compliance with the Commission's order prior
to or following an administrative petition for enforcement. See 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �
1614.503(g). Alternatively, the complainant has the right to file a
civil action on the underlying complaint in accordance with the paragraph
below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407
and 1614.408. A civil action for enforcement or a civil action on the
underlying complaint is subject to the deadline stated in 42 U.S.C. �
2000e-16(c)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
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 (R1199)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. 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 (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:
December 10, 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:
_______________ __________________________
Date Equal Employment Assistant
1On 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.