01982742
03-16-1999
Betty L. Wright, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Betty L. Wright v. United States Postal Service
01982742
March 16, 1999
Betty L. Wright, )
Appellant, )
)
v. ) Appeal No. 01982742
) Agency No. 4G-7600307-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning her 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 final agency decision was received by
appellant on February 13, 1998. The appeal was postmarked February 23,
1998. Accordingly, the appeal is timely (see 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 for failure to timely seek EEO counseling.
BACKGROUND
Appellant contacted an EEO counselor on July 7, 1997, regarding
allegations of discrimination. Specifically, appellant alleged that she
was discriminated against when in April 1997 a male employee received
EAS-17 pay during his detail to Manager, Southlake Post Office,
while appellant received EAS-16 level pay during her detail to the
same position. Informal efforts to resolve appellant's concerns were
unsuccessful. Accordingly, on December 26, 1997, appellant filed a
formal complaint alleging that she was the victim of unlawful employment
discrimination on the bases of race (black), color (dark brown), sex
(female), and reprisal (prior EEO activity).
On February 11, 1998, the agency issued a final decision dismissing
appellant's complaint for failure to timely initiate contact with an
EEO Counselor. Specifically, the agency determined that appellant's
July 7, 1997 EEO contact concerning an event occurring in April 1997
was beyond the forty-five (45) day time period for Counselor contact.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved
person must initiate contact with an EEO 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. United States Postal Service, 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 further 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.
Here, appellant alleges that in April 1997 she was discriminated
against when she learned that during her detail to a manager position,
she received a lower level of pay than a white male employee detailed
to the same position. The record indicates, however, that appellant
did not seek counseling regarding her allegations until July 7,
1997. Appellant's contact was untimely pursuant to EEOC Regulation
29 C.F.R. �1614.105(a)(1). Appellant does not indicate that she was
unaware of the time limits for Counselor contact. In fact, appellant
fails to offer any evidence to contradict the agency's determination
regarding her counselor contact. Upon review, we determine that
appellant has failed to demonstrate that the time period for counselor
contact should be extended for any reason.
CONCLUSION
Accordingly, the agency's decision dismissing appellant's complaint is
hereby, AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (MO795)
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. 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. �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:
March 16, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations