01a30555_r
03-17-2003
Richard E. Tyson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Richard E. Tyson v. United States Postal Service
01A30555
March 17, 2003
.
Richard E. Tyson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A30555
Agency No. 1E-891-0050-01
DECISION
Upon review, the Commission finds that the agency's decision dated
September 24, 2002, dismissing complainant's complaint due to untimely
EEO Counselor contact is proper pursuant to 29 C.F.R. � 1614.107(a)(2).
In his complaint, complainant alleged discrimination based on race (Black)
when on November 13, 2000, he was issued a Maintenance Selection System
(MSS) Incraft Rating Summary which contained erroneous information
and revealed to him that the review panel and maintenance management
conspired to fail him because of his race in order to prevent him from
advancing in the maintenance craft. The record indicates that complainant
contacted an EEO Counselor with regard to his complaint on July 5, 2001,
which was beyond the 45-day time limit set by the regulations. In his
complaint, complainant, specifically, indicated that he did not contact
an EEO Counselor until he could prove he had been discriminated against.
Complainant further indicated that in order to prove discrimination he
had to learn enough about the MSS to understand how the discrimination
was taking place, and he did not find the proof until July 2001.
The Commission has adopted a �reasonable suspicion� standard (as opposed
to a �supportive facts� standard) to determine when the limitation period
is triggered under the EEOC Regulations. See 29 C.F.R. � 1614.105(a)(2);
Ball v. United States Postal Service, EEOC Request No. 05880247 (July 6,
1988). Thus, the limitations period is not triggered until a complainant
reasonably should have suspected discrimination, but before all the facts
that would support a charge of discrimination have become apparent.
In the instant case, the Commission finds that complainant reasonably
should have suspected discrimination when he received the alleged MSS
rating which prompted him to look into the matter. The Commission
also finds that complainant's waiting until he had evidence to prove
the alleged discrimination does not toll the requisite time limit for
contacting an EEO Counselor. It is noted that complainant does not
argue that he was unaware of the requisite time limit to contact an EEO
Counselor at the time of the alleged incident.
Accordingly, the agency's decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
March 17, 2003
__________________
Date