01A35320_r
12-18-2003
Ernest N. Candelaria, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ernest N. Candelaria, Jr. v. United States Postal Service
01A35320
December 18, 2003
.
Ernest N. Candelaria, Jr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A35320
Agency No. 1E-802-0002-03
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated August 5, 2003, 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
In his formal complaint filed on May 2, 2003, complainant alleged
that he was subjected to discrimination on the bases of sex, national
origin, age, disability and in reprisal for prior EEO activity when
beginning in 1999 through June 28, 2002, a former Bulk Mail Center
Manager unreasonably interfered with his work performance and created
a hostile work environment for him.<1>
In its final decision dated August 5, 2003, the agency dismissed the
complaint for untimely EEO Counselor contact. Specifically, the agency
found that complainant's initial EEO Counselor contact occurred on
August 22, 2002, and was more than forty-five days after the dates of
the alleged incidents.
On appeal, complainant argues that he initiated EEO contact before the
August 22, 2002 date as the agency determined in its final decision.
Complainant further argues that the last alleged discriminatory event
of June 28, 2002 �was only an approximation� because he informed the
Counselor that it was the date of the Plant Manager's last day on site
at the agency's Denver facility but that the Counselor and the Acting
Manager failed to verify the date that the Plant Manager was on site.
Complainant further contends that the Acting Manager waived the forty-five
-day time limitation period after he explained to him the inconvenience he
went through to initiate EEO contact because the EEO posters on display
at his work site did not contain a mailing address.
In response, with respect to complainant's argument that the period
of alleged discrimination should be extended because there was a
possibility that the Plant Manager was still on site, the agency found
that there was no showing that the Manager did anything that would have
caused complainant to be aggrieved after June 28, 2002. The agency
further contends that the Acting Manager had no authorization to waive
time limits in the instant case. The agency further argues that all
EEO posters back from 1999 to present contained a mailing address.
In support of its argument, the agency submits copies of "Memorandums
For: Supervisors, Managers and Postmasters," signed and dated by several
management officials confirming the posting of updated EEO posters
in complainant's workplace during the relevant period. The agency
further argues that complainant had access to forms on the agency's
Intranet and could have mailed them to the address on the EEO poster
and that the forms would have been forwarded to the new agency office.
Furthermore, the agency argues that as a supervisor and having filed
prior EEO complaints, complainant was familiar with the EEO process.
The record contains a copy of Information for Pre-Complaint Counseling and
the agency's final interview letter to complainant dated April 11, 2003.
Therein, the record reveals that complainant initiated EEO contact on
August 13, 2002.
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 record in this case reflects that complainant's initial EEO Counselor
contact occurred on August 13, 2002, instead of August 22, 2002, as
determined by the agency in its final decision. Irrespective of the
earlier EEO Counselor contact date of August 13, 2002, the Commission
determines that complainant nonetheless initiated untimely Counselor
contact. The record supports a determination that the last date of
alleged discriminatory conduct occurred on June 28, 2002, and we are
unpersuaded by complainant's assertions that any alleged discriminatory
conduct occurred subsequent to this date, merely on the supposition that
the alleged discriminating employee may have been on site subsequent
to that date. Assuming that the latest date that alleged discriminatory
activity occurred was on June 28, 2002, complainant's initial EEO contact
on August 13, 2002, is beyond the forty-five-day limitation period.
Further, the agency presented evidence that the time limit and process
for contacting an EEO Counselor were conveyed to the employees. It is
the Commission's policy that constructive knowledge will be imputed to
an employee when an employer has fulfilled its obligation of informing
employees of their rights and obligations under Title VII. Thompson
v. Department of the Army, EEOC Request 05910474 (September 12, 1991).
Finally, in the EEO Counselor's report, complainant indicated that
he did not pursue the EEO complaint process earlier because of fear
of reprisal from the former Bulk Mail Center Manager. The Commission
has determined that fear or reprisal, without more, will not toll the
applicable EEO time limitations. Croft v. Department of the Army,
EEOC Request No. 05970699 (August 1, 1997). Complainant has presented
no persuasive arguments or evidence warranting an extension of the time
limit for initiating EEO Counselor contact.
Accordingly, the agency's final decision dismissing complainant's
complaint 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
December 18, 2003
__________________
Date
1The record reveals that the named Bulk Mail
Center Manager is also referenced as a Plant Manager.