01982619
03-05-1999
Charlotte D. Cook, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Charlotte D. Cook, )
Appellant, )
)
v. ) Appeal No. 01982619
) Agency No. 4H300001298
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
Appellant timely initiated an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from a final agency decision (FAD)
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 Commission hereby accepts the appeal in
accordance with EEOC Order No.960.
The issue on appeal is whether the agency properly dismissed the
appellant's complaint, pursuant to 29 C.F.R. �1614.105(a)(1), for failure
to make timely contact with an EEO Counselor.
Appellant alleges that she was discriminated against on the bases of
race (Black), sex (female), and reprisal (prior EEO activity), when
she was continuously harassed by a co-worker, who allegedly made fun
of her and accused her of not working, and neither her supervisor nor
the Postmaster would meaningfully intervene or sanction the co-worker.
The appellant contends that this alleged harassment commenced on May 22,
1997, when the co-worker learned that she filed an EEO complaint. The
agency dismissed the complaint, contending that the appellant did not
make initial EEO Counselor contact until October 3, 1997, more than
45 days after the May 22, 1997, date of discrimination provided by the
appellant in her formal complaint.
On appeal, the appellant argues that the latest date of discrimination
is August 16, 1997, which is noted on the Pre-complaint form (Form
2564-A) and fully described in a separate attached statement. A review
of the EEO's Counselor's Report, the Pre-complaint form, and the formal
complaint, show that the appellant consistently contends that she has
been subjected to continuous harassment by a co-worker commencing from
May 22, 1997, with the latest described incident taking place on August
16, 1997. The appellant does not contend that the May 22, 1997, EEO
complaint in any way implicated the co-worker in her claim of unlawful
employment discrimination.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the 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. 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.
Even using the August 16, 1997, date as the most recent date of
discrimination, the appellant was required to contact the EEO Counselor
by September 30, 1997, in order for the contact to be within 45 days
and deemed timely under the law and regulations cited above. Although
appellant argues that the harassment continues to the present, she fails
to provide any incidents to verify this any later than August 16, 1997.
We note that the appellant does not allege that she was unaware of the
45 day EEO Counselor contact requirement; and that, on appeal, the agency
submitted an affidavit declaring the that an EEO poster was appropriately
located and that all employees were given written instructions regarding
the EEO process. See Thompson v. Department of the Army, EEOC Request
No. 05910474 (Sept. 12, 1991), and Pride v. United States Postal Service,
EEOC Request No. 05930134 (Aug. 19, 1993).
Accordingly, we AFFRIM the FAD.
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.
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.F.R.).
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 5, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations