01985130_r
09-07-1999
Steven Constable, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Steven Constable, )
Appellant, )
)
v. ) Appeal No. 01985130
) Agency No. 4B120005398
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On June 6, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD), dated June 2, 1998, pertaining to
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 Commission accepts appellant's appeal in accordance with EEOC Order
No. 960, as amended.
In his complaint, appellant alleged that was subjected to discrimination
on the bases of sex (male) and reprisal when he was not selected for a
detail as an Ad Hoc EEO Counselor/Investigator for the period January
23 through February 28, 1998.
The agency dismissed appellant's complaint pursuant to EEOC Regulation 29
C.F.R. �1614.107(b), for untimely EEO Counselor contact. Specifically,
the agency noted that appellant sought counseling on February 23, 1998;
however, the agency noted that by appellant's own admission, he became
aware of his nonselection in the Fall of 1997. The record indicates
that appellant was notified by correspondence dated October 17, 1997,
of the identity of the individual in the EEO Counselor/Investigator,
Ad-Hoc position. Further, the agency noted that appellant had engaged
in prior EEO activity and he should be versed in the relevant time limits.
On appeal, appellant asserts that he did not know that there had been a
vacancy filled for an EEO counselor until he received a call, in the Fall
of 1997, concerning a prior, unrelated complaint. Appellant was called
by the person who was hired for the position for which appellant had
previously applied, but was told that there were no current vacancies.
Appellant further argues that he could not in good faith raise this
complaint, at that time, with the person who was not only hired into
the position at issue, but who was also working to resolve his prior
complaint. Essentially, appellant's position is that while he had
knowledge of the 45-day limitation, he felt extremely "awkward" in
approaching the very person who had gotten the position for which he
was not considered.
In response, the agency notes that appellant could have raised the issues
in his April 29th complaint by resorting to three telephone numbers
listed on an EEO poster at appellant's installation. The agency submits
a copy of the poster containing the three different telephone numbers.
The agency contends that appellant could have chosen to call any of those
numbers in an effort to communicate with a different EEO counselor who was
not in any way associated with his prior or present complaint at issue.
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 Ball v. USPS, EEOC Request
No. 05880247 (July 6, 1988). 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 she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
Appellant clearly acknowledges that he was aware of the 45-day limitation,
but was unable to comply with the applicable time limit for initiating
EEO contact because he felt awkward under the circumstances. The agency,
however, presented evidence of record to show that a poster, containing
three different telephone numbers with three different possible options
for appellant, was on display at appellant's work site during the relevant
time period. By pursuing those options, appellant could have contacted
a different EEO counselor, who was not connected with the position at
issue. Appellant became aware of the alleged discrimination on or around
October 16, 1997, however, he did not contact an EEO counselor until
February 23, 1998. We find that appellant failed to present adequate
justification to warrant an extension of the applicable time limit.
Accordingly, the agency's decision is hereby AFFIRMED.
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. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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:
Sept. 7, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations