01994181
02-08-2000
Sharon D. Forde, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Sharon D. Forde, )
Complainant, )
)
)
v. ) Appeal No. 01994181
) Agency No. 1E-801-0013-99<1>
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On April 25, 1999, complainant filed a timely appeal of a March 11,
1999 final agency decision, which was received by her on March 31,
1999, dismissing two claims of her complaint and accepting one claim for
further processing.<2> Volume 64 Fed. Reg. 37, 644, 37, 656 (1999)(to
be codified and hereinafter referred to as 29 C.F.R. � 1614.107(b))
provides that where an agency decides that some but not all of the
claims in a complaint should be dismissed, the agency shall notify
the complainant of its determination; however this determination is not
appealable until final action is taken on the remainder of the complaint.
The Commission previously inquired of the parties the status of the
remainder of the complaint at issue. Based on the responses, it appears
that the remainder was the subject of a final agency decision on July 9,
1999, rendering those claims pending herein the only remaining viable
matters and ripe for review on appeal.
In its final decision, the agency identified the claims of complainant's
complaint as whether complainant, a Central Forwarding System (CFS) clerk,
was discriminated against based on race (Black American), national origin
(African American), age (45), and in reprisal for prior EEO activity when:
(1) on October 5, 1998, the Manager of CFS and her subordinates selected
another white person to be a supervisor and trained that person as a
supervisor within CFS; (2) on August 4, 1998, the Manager of CFS and
her subordinates chose white males and females to be utilized as an
On-the-Job Instructor (OJI); and (3) on November 11, 1998, she became
aware that an employee whose statements were used against her in a prior
EEO was illegally hired into the CFS unit. The agency dismissed claim (2)
due to untimely EEO Counselor contact since the alleged incident occurred
on August 4, 1998, and complainant did not contact an EEO Counselor until
October 6, 1998; dismissed claim (3) for failure to state a claim since
complainant failed to show that she was harmed by the alleged incident;
and accepted claim (1) for investigation.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination be brought to the attention of the EEO Counselor within
45 days of the alleged discriminatory event, or the effective date of
an alleged discriminatory personnel action.
The Commission has adopted a �reasonable suspicion� standard (as opposed
to a �supportive facts� standard) to determine when the limitation period
is triggered under the EEOC Regulations. See 29 C.F.R. � 1614.105(a)(2);
Ball v. United States Postal Service, EEOC Request No. 05880247 (July 6,
1988). Thus, the limitations period is not triggered until a complainant
should reasonably suspect discrimination, but before all the facts that
would support a charge of discrimination have become apparent.
Claim (2) concerned the denial of an OJI which allegedly occurred on
August 4, 1998. Complainant contacted an EEO Counselor concerning the
matter on October 6, 1998, which was beyond the 45-day time limit set
by the regulations. On appeal, complainant fails to present adequate
justification to warrant an extension of the applicable time limit for
contacting an EEO Counselor.
Volume 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and
hereinafter referred to as 29 C.F.R. � 1614.107(a)(1)) provides that
prior to a request for a hearing in a case, the agency shall dismiss a
complaint that fails to state a claim pursuant to 29 C.F.R. � 1614.103.
In order to establish standing initially under 29 C.F.R. � 1614.103,
a complainant must be either an employee or an applicant for employment
of the agency against which the claims of discrimination are raised.
In addition, the claims must concern an employment policy or practice
which affects the individual in his/her capacity as an employee or
applicant for employment. The agency shall accept a complaint from
any aggrieved employee or applicant for employment who believes that
he/she has been discriminated against by that agency because of race,
color, religion, sex, national origin, age, or disability. 29 C.F.R. ��
1614.103 and .106(a). The Commission's Federal sector case precedent has
long defined an �aggrieved employee� as one who suffers a present harm
or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994).
Claim (3) concerned the agency's allegedly discriminatory hiring practices
when it hired a white individual into CFS, and not two black individuals.
Complainant did not present any evidence as to how she was personally
harmed or injured as a result of the alleged incident. Since the
incident involved a third party action, not personal to complainant,
we find that it failed to state a claim.
Based on the foregoing, we find that the agency's final decision was
proper and it is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
February 8, 2000
DATE
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant1The record indicates that the agency
consolidated two of complainant's complaints, i.e., a complaint filed
December 21, 1998 (Agency No. 1E-801-0013-99), and a complaint filed
February 4, 1999 (Agency No. 4E-800-0098-99), for joint processing and,
thereafter, referred to complainant's case as Agency No. 1E-801-0013-99.
2On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.