0120072525
08-02-2007
Darron Bookout, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Darron Bookout,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120072525
Agency No. 4G720004107
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated April 4, 2007, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. In his complaint, complainant alleged that he was subjected
to discrimination on the bases of sex (male), age (D.O.B. 10/28/65), and
reprisal for prior protected EEO activity under Title VII of the Civil
Rights Act of 1964 and the Age Discrimination in Employment Act of 1967
when his request for auxiliary assistance was denied and other employees
who had his route received help. In its April 4, 2007 final decision, the
agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a) on the
grounds of untimely EEO Counselor contact and failure to state a claim.
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely
EEO Counselor contact. In pertinent part, the EEOC regulation found at
29 C.F.R. � 1614.107(a)(2) allows an agency to dismiss a complaint that
fails to comply with the applicable time limits contained in 29 C.F.R. �
1614.105.
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 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.
The record discloses that the most recent alleged discriminatory event
occurred on March 21, 2005, but complainant did not initiate contact with
an EEO Counselor until January 4, 2007, which is beyond the forty-five
(45) day limitation period. On appeal, complainant argues that he did
not have a reasonable suspicion of discrimination until a telephone
conversation that occurred on December 18, 2006. However, nothing in the
record suggests that complainant learned new information related to the
alleged incidents of discrimination during this conversation. The record
suggests, rather, that the phone conversation was with the agency's
collection department in reference to an invoice informing complainant
about health and related benefits owed.
Moreover, the record contains a statement, dated April 3, 2007, verifying
that an EEO poster outlining the 45-day requisite time period was on
display on the Employee Bulletin Board.
Therefore, the Commission finds that complainant had, or should have had,
a reasonable suspicion of unlawful employment discrimination at the time
of the alleged discriminatory event, and that he should have contacted
the EEO office within forty-five days. Complainant has failed to provide
sufficient justification for extending or tolling the time limitation.
Because we affirm the agency's dismissal of the complaint on the ground
of untimely EEO Counselor contact, we find it unnecessary to address it
on alternative grounds (i.e. failure to state a claim).
Accordingly, the agency's final 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
August 2, 2007
__________________
Date
2
0120072525
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120072525