0120101667 (Lenahan)
08-31-2010
Paul J. Lenahan, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Paul J. Lenahan,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120101667
Agency No. 1E-853-0002-10
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated February 19, 2010, dismissing his complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely contact of an EEO Counselor. Upon review, the Commission finds that Complainant's complaint was properly dismissed and we therefore AFFIRM the Agency's decision.
BACKGROUND
In his complaint filed on February 4, 2010, Complainant claimed that the Agency discriminated against him on the bases of his race (Caucasian) and sex (male) when he received a performance evaluation that, he contended, was both inaccurate and unfair.
The record discloses that on November 6, 2008, Complainant's immediate supervisor (S1) completed his performance evaluation of Complainant. Performance Evaluation. As part of the evaluation process and required by his participation in the Agency's Pay For Performance (PFP) appraisal system, Complainant completed a self-evaluation on October 28, 2008. Id. The PFR evaluation form facilitated the assessment of employees in the competencies of the employees' positions. Id. Each competency received a numerical score, from one through fifteen, for each performance element. Id. The performance standards for many of the competencies of Complainant's position were articulated in terms of quantified performance achievements. Id.
Complainant's self-evaluation, based on the quantified performance standards and his self-reported performance achievements, should have qualified him for an "exceptional contributor" ranking with a corresponding evaluation score of thirteen through fifteen for each performance measure. Instead, Complainant received "high contributor" rankings for each of the competencies about which S1 evaluated him, with a corresponding evaluation score of eleven for each performance element.
The Agency dismissed the complaint as untimely under 29 C.F.R. � 1614.107(a)(2). According to the agency, employees can access and review their performance evaluations at any time. The Agency noted that the performance evaluation at issue was completed on November 10, 2008, and Complainant has had the ability to access his records at any time since November 18, 2008. The Agency noted that in January 2009, Complainant received his Form 50 with his pay raise for his 2008 performance evaluation. The Agency states that Complainant nonetheless did not initiate contact with an EEO Counselor until October 26, 2009.
On appeal, complainant does not contest the agency's determination that that he failed to initiate EEO Counselor contact regarding his performance evaluation until October 26, 2009. Notice of Right to File; see Complainant's Statement on Appeal. Instead, Complainant contended that, when he met with S1 to discuss his self-evaluation, S1 gave no indication that he would not adopt Complainant's self-assessment as his supervisory assessment of Complainant. As a result, Complainant was not aware of the nature of his evaluation until October 16, 2009, when he obtained a copy of his 2008 evaluation while preparing his self-assessment for 2009. See Complainant's Statement on Appeal at 4.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) requires that the aggrieved party initiate contact with an EEO counselor within 45 days of the date the alleged discriminatory conduct occurs. However, 29 C.F.R. � 1614.107(a)(2) provides for a tolling of the 45-day filing period if the individual "did not know and reasonably should not have known that the discriminatory matter or personnel action occurred."
We have adopted the "reasonable suspicion" standard to determine when the 45-day limitation period commences. See Ball v. U.S. Postal Serv. EEOC Request No. 05880247 (July 6, 1988). We have also been willing to entertain the notion that a complainant did not and could not have had a reasonable suspicion that he or she experienced discrimination until well after the alleged discriminatory conduct occurred. See, e.g., Hill v. Dep't of the Army, EEOC Appeal No. 01A62164 (June 26, 2006) (complainant had reasonable suspicion of discriminatory performance evaluation one year after evaluation date after discovering comparators); Guerra v. United States Postal Serv., EEOC Appeal No. 01931540 (Aug. 5, 1993) (reversal of Agency dismissal of complaint when record insufficient to determine when complainant developed reasonable suspicion of discrimination).
Accepting Complainant's claims as true, the record discloses that Complainant did not learn the result of his PFP evaluation until nearly one year after the evaluation occurred. Complaint at 2. Complainant states that he did not investigate the results of his evaluation meeting with S1 because, during their evaluation meeting, S1 gave no indication to Complainant that he disagreed with Complainant's self assessment of his job performance which, on its face, qualified him for an "exceptional contributor" rating in at least three of the four performance areas in which he was rated. Id.; see Complainant's Performance Evaluation.
According to Complainant, it was not until nearly one year later, on October 16, 2009, that while preparing his 2009 performance evaluation, he realized that he had been evaluated in a manner he thought unfair, and he stated that it was only after that discovery that he researched other employees' performance evaluations to discover whether a pattern of discrimination against White males existed. Complaint at 2. Complainant maintains that he has discovered such evidence that substantiates his belief that the Agency discriminated against him. We find that despite Complainant's contention that he did not suspect discrimination until October 16, 2009, he should have had a reasonable suspicion of discrimination at a significantly earlier point given that he could have viewed his performance appraisal starting in November 2008. Complainant stated that his salary was impacted by the lower rating as he lost a .750% pay increase equivalent to $672.44 annually. Given that his salary was at issue, it is reasonable to expect that Complainant would have researched and reviewed this matter well before October 16, 2009. As a result, we find that Complainant failed to initiate EEO contact in a timely manner.
CONCLUSION
The Agency's dismissal of Complainant's formal EEO complaint for untimely EEO counselor contact is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
August 31, 2010
__________________
Date
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0120101667
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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