01a52213
04-27-2005
Steven C. Fagg, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Steven C. Fagg v. United States Postal Service
01A52213
April 27, 2005
.
Steven C. Fagg,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A52213
Agency No. 4C-250-0009-05
DECISION
Complainant filed an appeal with this Commission from the agency's
decision dated December 23, 2004, dismissing his complaint of unlawful
employment discrimination. In his complaint, complainant alleged that
he was subjected to discrimination on the basis of reprisal for prior
EEO activity when:
On an unspecified date, complainant was reassigned to the carrier annex
and complainant's non-scheduled days and duty hours were changed.<1>
The agency dismissed the complaint, among other grounds, pursuant to
29 C.F.R. � 1614.107(a)(2), finding that complainant did not clearly
indicate when his reassignment (after which his duty hours and days
off were changed) occurred, and relying on complainant's statement
that the reassignment occurred as early as August 17, 2004, which, the
agency found, was beyond the 45-day time limit for initiating the EEO
counseling process.
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 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.
We observe that the record discloses an assignment order with an
approximate ending date of August 31, 2004, and a hand-written annotation
indicating complainant's detail to Grandin Road, (after which complainant
presumably returned to the carrier annex) was terminated on July 16, 2004.
This document is accompanied by an electronic mail message, dated July
16, 2004, from an agency official, directing that complainant's detail
be terminated, effective July 9, 2004. Additionally, the EEO Counselor's
report lists the date of complainant's reassignment to the carrier annex
as �the first week of September 2004.�
We find that even if we assume the most recent date noted in the record
for complainant's reassignment (September 7, 2004), to be correct,
complainant's claim is untimely. Complainant's initial EEO contact on
October 28, 2004, (which complainant does not dispute) is clearly beyond
the 45-day time limit. We further find complainant has not submitted any
evidence on appeal to warrant an extension of the applicable time limits.
We therefore AFFIRM the agency's dismissal of the complaint pursuant to
29 C.F.R. � 1614.107(a)(2).
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
April 27, 2005
__________________
Date
1Complainant's initially sought counseling for
a second claim involving a letter of reprimand he received on September
17, 2004. However, this claim does not appear in his complaint and we
find that complainant abandoned this second claim.