01976896
06-02-1999
Stephen F. Foley, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Stephen F. Foley v. United States Postal Service
01976896
June 2, 1999
Stephen F. Foley, )
Appellant, )
)
v. ) Appeal No. 01976896
) Agency No. 4-B-028-0053-97
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
________________________________)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning his complaint of unlawful employment discrimination
in violation of Section 501 of the Rehabilitation Act of 1973, as
amended, 29 U.S.C. �791 et seq. The final agency decision was received
by appellant on August 8, 1997. The appeal was postmarked September 6,
1997. Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)),
and is accepted in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed allegations
(1) and (2) of appellant's complaint on the grounds that appellant failed
to contact an EEO Counselor in a timely manner.
BACKGROUND
A review of the record reveals that appellant initiated counseling on
March 8, 1997, and filed a complaint on June 12, 1997. He alleged
that he was discriminated against on the basis of his mental
disability (unspecified) when his position and starting times
were changed on December 10, 30, and 31, 1996. The agency's final
decision found that appellant failed to exercise due diligence and
waited for a period of time beyond the requisite forty-five (45) days to
request EEO counseling. The agency dismissed allegations (1) and (2)
of appellant's complaint for untimely counselor contact. The agency
stated that there are posters on the bulletin board which contain the
forty-five (45) day time limit in the facility where appellant works.
The only allegations accepted for investigation were (3) through (5).
On appeal, the appellant raises no new contentions.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.105(a)(1), effective October 1, 1992,
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 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 limitation period is triggered. See Ball v. USPS, EEOC Request
No. 05880247 (July 6, 1988). Thus, the limitation period is not triggered
until a complainant reasonably suspects discrimination, but before all
the facts that support a charge of discrimination have become apparent.
Based on a thorough review of the record, the Commission finds
that allegations (1) and (2) were properly dismissed for untimely
counselor contact. Appellant should have had a reasonable suspicion
of discrimination more than 45 days prior to his counselor contact.
Accordingly, the Commission AFFIRMS the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
June 2, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations