01991371
02-09-2000
Perman W. Davis, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Perman W. Davis, )
Complainant, )
)
v. ) Appeal No. 01991371
) Agency No. 1-B-011-0039-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Complainant filed an appeal with this Commission from a final decision of
the agency concerning 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., the Age Discrimination in Employment Act
of 1967, as amended, 29 U.S.C. �621 et seq., and the Rehabilitation
Act of 1973, as amended, 29 U.S.C. �791 et seq.<1> The final agency
decision was received by appellant on November 5, 1998. The appeal was
postmarked December 4, 1998. Accordingly, the appeal is timely (see 64
Fed. Reg. 37,644 37,659 (1999)(to be codified at 29 C.F.R. �1614.402)),
and is accepted in accordance with EEOC Order No. 960, as amended.
Complainant contacted an EEO counselor on April 24, 1998, regarding
claims of discrimination. Specifically, complainant alleged that he
was discriminated against when:
(1) his April 12, 1995 request to be converted from a Part-time Regular
Mail Handler (PTR) to a Part Time Flexible Mail Handler (PTF) was not
made effective until February 14, 1998; and
(2) during the last week of April 1998, his union steward was advised by
a Human Resource Specialist that he would not be retroactively reassigned
to a PTF status.
Informal efforts to resolve complainant's concerns were unsuccessful.
On September 25, 1998, complainant filed a formal complaint alleging that
he was the victim of unlawful employment discrimination on the bases of
race, color, sex , age, and disability.
On November 4, 1998, the agency issued a final decision (FAD) dismissing
complainant's complaint for untimely counselor contact. Regarding claim
(1), the agency determined that complainant's April 24, 1998 EEO contact
regarding his April 1995 request to be converted to a PTF Mail Handler
was beyond the forty-five (45) day time period for counselor contact.
The agency states that EEO posters outlining the proper procedures for
counselor contact are displayed at complainant's workplace. The FAD
found also that claim (2) of complainant's complaint regarding his
union steward learning in the last week of April 1998 that he would
not be retroactively reassigned to PTF status, was an attempt to make
claim (1) timely. The agency indicated further in its decision, that
complainant's complaint constituted a collateral attack on a grievance
decision concerning complainant's conversion to PTF Mail Handler.
The Commission notes that 64 Fed. Reg. 37,644, 37656 (1999) (to be
codified and hereinafter referred to as EEOC Regulation 29 C.F.R. �
1614.107(a)(2). 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 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 Ball v. USPS,
EEOC Request No. 05880247 (July 6, 1988). Thus, the limitations period
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.
In the instant matter, complainant alleges that the agency engaged in
discriminatory conduct when it failed for three years to honor his request
to be converted from PTR to PTF Mail Handler. The record indicates that
on April 12, 1995, complainant requested that the agency convert him
from regular to flexible status, but that he was not converted to PTF
Mail Handler until February 14, 1998. The report of the EEO Counselor
indicates that other PTR handlers hired at the time complainant was
hired were converted to flexible handlers in May 1997.
Upon review, we find that the agency's decision dismissing complainant's
complaint as untimely was proper. Complainant does not indicate that
he was unaware of the time limits for counselor contact, nor does he
suggest that he was prevented for any reason from timely seeking contact
with an EEO Counselor. We are persuaded by the agency's contention that
complainant had a reasonable suspicion of discrimination regarding his
conversion, prior to his EEO contact on April 24, 1998. Complainant
states in his complaint that he believed that other mail handlers were
converted to PTF status before him. The record also indicates that
complainant filed a grievance regarding the issue on February 28,
1998, wherein he requested that his seniority date for his PTF job
classification be re-adjusted.
The 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. See Williams
v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992).
Complainant has offered no explanation for his delay in seeking counseling
regarding the issue of his conversion. Accordingly, the agency has met
it's burden concerning the issue of untimeliness. Moreover, the record
shows that complainant filed a grievance before he sought EEO counseling.
The Commission has specifically held that an internal appeal of the
agency's adverse action and/or the filing of a grievance do not toll the
running of the time limit to contact of an EEO Counselor. See Hosford
v. Department of Veterans Affairs, EEOC Request No. 05890038 (June 9,
1989).
Regarding claim (2), the Commission determines that the matter contained
therein is merely an elaboration of the issue raised in claim (1),
relating to the agency's purported delay in converting his PTR status
to PTF status.
Accordingly, the agency's decision dismissing complainant's complaint
for untimely EEO Counselor contact is hereby AFFIRMED for the reasons
set forth herein.
FOR THE COMMISSION:
February 9, 2000
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:
______________
_________________________________
DATE1On 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.