01993847
02-02-2001
Monteria A. Peoples v. USPS 01993847 February 2, 2001 . Monteria A. Peoples, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Monteria A. Peoples v. USPS
01993847
February 2, 2001
.
Monteria A. Peoples,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01993847
Agency No. 1D-234-0031-99
DECISION
On April 9, 1999, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) 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> The Commission
accepts the appeal in accordance with 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified at 29 C.F.R. � 1614.405).
The record indicates that complainant contacted the EEO office on
January 18, 1999, regarding claims of discrimination based on race, sex,
and reprisal. Informal efforts to resolve complainant's complaint were
unsuccessful. Complainant filed a formal complaint on February 19, 1999.
The agency framed the complainant's claims as follows:
In November 1996, June 1997, and June 1998, a supervisor told complainant
that another employee told the supervisor to lower complainant's
evaluations for any EAS-16 position;
On April 26, 1998, the Acting Manager of Distribution Operations and
another employee had a private meeting to conspire together in developing
a story line that initiated a false EEO;
On April 28, 1998, complainant was verbally harassed by his Tour Manager;
On July 10, 1998, complainant was issued a Letter of Warning for Improper
Conduct; and,
During July 1998, complainant learned that his PS Form 3972 Absence
Record contained false data, causing him not to be recommended for the
Associate Supervisor Program.
The agency issued a decision, dated March 31, 1999, dismissing the
complaint for untimely EEO Counselor contact. Specifically the agency
indicated that complainant contacted the EEO Counselor on January 18,
1999, which is at least five months after the most recent alleged
incident, and beyond the forty-five day time limitation.
On appeal, complainant contends that the agency improperly dismissed
his complaint for untimely EEO Counselor contact. Complainant argues
he called an EEO Counselor on July 10, 1998, rather than on January 18,
1999, as determined by the agency. According to complainant, he called an
EEO Counselor on July 10, 1998, in order to �put an EEO� on a co-worker,
and followed the Counselor's instructions to first contact the union
representative. Complainant states that some time after November
1998, he learned that the union representative did not �do an EEO� on
the co-worker. Complainant states that he waited until after the union
had a letter of warning removed in January 1999, and then contacted the
EEO Counselor again to go forward with the EEO against the co-worker.
Complainant argues that he has never filed an EEO case before and simply
followed the advice given by the EEO Counselor in July 1998.
The agency does not respond to complainant's arguments on appeal, because
it claims that complainant failed to notify the agency that he was filing
an appeal of the final decision. The agency instead requests that the
Commission disregard any submission of an appeal by the complainant.
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 (February 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 she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
In the instant case, complainant contends that he contacted the EEO
Counselor in a timely manner, on July 10, 1998. The Counselor's Report,
however, indicates that complainant's initial contact was on January
18, 1999. The Commission finds that complainant has failed to show that
he initiated contact with an intent to pursue the EEO process prior
to January 18, 1999. The Commission notes that although complainant
purportedly contacted the EEO office in July 1998, he did not follow
up and learn that no action had been taken until approximately four
months later. Then, complainant waited an additional two months before
going back to the Counselor.
Complainant also argues that he was unfamiliar with the EEO process.
It is well settled that constructive knowledge of the time limit for
contacting an EEO Counselor will be imputed to a complainant when the
agency has fulfilled its statutory duty of posting notices informing
employees of their EEO rights and obligations. See Thompson v. Department
of the Army, EEOC Request No. 05910474(September 12, 1991). Here, the
record contains an affidavit from the Manager, Distribution Operations
who attests that an EEO poster with the 45-day time limit was displayed
on the employee bulletin board prior to 1996 and during April and July
1998. A Human Resources Associate also attests to an EEO poster, with
the time limit, posted in both the workroom floor and front lobby area.
We determine that this is sufficient to impute constructive knowledge
of the 45-day time to complainant. See Santiago v. United States Postal
Service, EEOC Request No. 05950272 (July 6, 1995).
Given the circumstances of this case, we find that complainant knew or
should have known of the 45-day limit for contacting an EEO Counselor and
yet he waited until after pursuing the matter through the union to seek
counseling. Accordingly, the agency's decision to dismiss the complaint
is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 2, 2001
__________________
Date
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.