APPELLANT, v. MARVIN T. RUNYON, JR., POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE, AGENCY. Appeal No. 01952036 Agency No. 1-H-378-1032-94 January 16, 1996 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. §621etseq. The final agency decision was received by appellant on December 27, 1994. The appeal was postmarked January 18, 1995. Accordingly, the appeal is timely under the provisions of 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 appellant's complaint on the grounds that appellant failed to timely seek EEO counseling. BACKGROUND The record shows that appellant sought EEO counseling on July 12, 1994, alleging that he had been discriminated against on the basis of age (52) when on July 12, 1994, the agency determined that appellant's original rating of "Ineligible" was correct. Appellant alleged that on March 4, 1994, he received an ineligible rating from the National Test Administration Center (NTAC). Appellant further alleged that after inquiring with his supervisor about the steps he needed to follow to protest the rating, he sent a letter to NTAC through the Human Resources office. After more than 90 days had passed without an answer to his inquiry, appellant allegedly resubmitted his inquiry. Thirty days later, on July 5, 1994, appellant received a letter from NTAC explaining why he was ineligible. Appellant filed his formal complaint on October 4, 1994, alleging that the agency discriminated against him on the basis of age when on July 5, 1994, NTAC rated him ineligible for the position of Motor Vehicle Operator. Appellant alleged that although his application documented over 34 years of driving experience, he was not rated for the position of Motor Vehicle Operator. He further alleged that the agency had not accepted his military driving experience. The agency issued its final decision on December 27, 1994, dismissing appellant's complaint on the grounds of un-timely EEO Counselor contact pursuant to the provisions of EEOC Regulation 29 C.F.R. §1614.107(b). The agency noted that although appellant had been rated ineligible by NTAC on March 4, 1994, he contacted an EEO Counselor on July 12, 1994, 130 days after the alleged discriminatory incident took occurred. On appeal, appellant contends that he "could not file a complaint in March because the only fact known to me at that time was that I was rated ineligible. I filed my complaint to EEO on July 12, 1994, which was seven days after the date on the Testing Center's letter to me." ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that "an aggrieved person must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action."EEOC Regulation 29 C.F.R. § 1614.604(c) provides that "the time limits in this part are subject to waiver, estoppel and equitable tolling." The record shows that on March 4, 1994, appellant received a rating of ineligible (dated February 28, 1994) for the position of Motor Vehicle Operator. On March 7, 1994, appellant requested NTAC to review his eligibility for the position in question, providing a detailed description of his driving experience. This Commission has applied a "reasonable suspicion" standard to the triggering date for determining the timeliness of the contact with an EEO Counselor. Cochran v. United States Postal Serv., EEOC Request No. 05920399 (June 18, 1992). Under this standard, the time period for contacting an EEO Counselor is triggered when the complainant should reasonably suspect discrimination, but before all the facts that would support a charge of discrimination may have become apparent. Id.; Paredes v. Nagle, 27 FEP Cases 1345 (D.D.C. 1982). Appellant contends that he could not file a complaint in March because the only fact known to him at that time was that he had been rated ineligible. He further alleged that on July 12, 1994, seven days after the date of NTAC's letter to him reaffirming the ineligible rating, he contacted an EEO Counselor, and his contact was therefore, timely. This argument is not persuasive to the Commission. Appellant received a rating on March 4, 1994. On that date, appellant was aware that even though he allegedly had considerable driving experience, he had been found to be ineligible for the position of Motor Vehicle Operator. Appellant has not made a persuasive argument showing that he only developed a reasonable suspicion of discrimination after receiving the July 1994 NATC letter. Under these circumstances appellant should have suspected discrimination on the date he received his rating and should have sought EEO counseling within 45 days of that date. Appellant has not alleged that he was unaware of the 45-day time limit for EEO Counselor contact. Moreover, he has failed on appeal to provide the Commission with evidence sufficient to justify equitable tolling or waiving the time limitations set forth in §1614.105(a)(1) and allow him to seek EEO counseling 130 days after the alleged discriminatory incident. CONCLUSION Accordingly, we find that the agency's final decision to dismiss appellant's complaint was proper pursuant to EEOC Regulation 29 C.F.R. §1614.107(b) and 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 WITHINTWENTY (20) CALENDARDAYS 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. See29 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. §2000eetseq.; 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: Ronnie Blumenthal Director Office of Federal Operations