01A00698
04-13-2001
Yvonne G. Gustafson, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Yvonne G. Gustafson v. United States Postal Service
01A00698
April 13, 2001
.
Yvonne G. Gustafson,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A00698
Agency No. 4F-913-0104-99
DECISION
Complainant filed a timely appeal with this Commission from an agency's
decision dated August 26, 1999, dismissing her 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. and Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. In her complaint, complainant alleged that she
was subjected to discrimination on the bases of race (White), color
(White), sex (female), retaliation (prior EEO activity), and disability
(asthma and stress) when:
On January 14, 1999, she was issued a Letter of Warning (LOW) charging
her with Failure to Follow Instructions/Poor Work Performance;
On January 25, 1999, her hours and days off were changed;
On June 22, 1999, she received copies of letters that her manager and
the postmaster sent to the Department of Labor which discredited her
injury compensation claim.
The agency dismissed claim (1) and (2) pursuant to EEOC Regulation 29
C.F.R � 1614.107 (a)(2), for untimely contact. Specifically, the agency
noted that complainant failed to contact an EEO counselor within 45 days
of the date of the matter alleged to be discriminatory. The agency argued
that a review of the EEO Counselor's report indicates that complainant
first sought EEO counseling on May 10, 1999, in reference to a LOW issued
to her on January 14, 1999 and a change in schedule which occurred on
January 25, 1999.
Also, the agency dismissed claim (3), stating that it failed to state
a claim. Specifically, the agency held that the processing of an Office
of Worker's Compensation Program (OWCP) claim is under the jurisdiction
of the U.S. Department of Labor, such that a collateral attack to the
OWCP process fails to state a claim.
The EEOC Regulations 29 C.F.R. � 1614.107 (a) require an agency to
cancel a complaint that fails to state a claim where an employee is
not aggrieved. 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. See Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994). As a general rule, agency opposition to an
OWCP claim does not affect a term, condition or privilege of employment
so as to render a person aggrieved. See Hall v. Department of Treasury,
EEOC Appeal No. 01945595 (February 23, 1995).
The Commission has held that an employee cannot use the EEO complaint
process to lodge a collateral attack on another proceeding. See Wills
v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998).
The proper forum for contesting the outcome of an OWCP claim is with
the Department of Labor. Foster v. United States Postal Service, EEOC
Request No. 05950693 (May 16, 1996). The Commission has established that
a complaint which fails to identify a particular omission by the agency
that influenced the OWCP process so as to result in a later denial of
OWCP benefits, fails to state a claim.
In allegation (3), complainant alleges that she was discriminated when
on June 21, 1999, management wrote a letter to OWCP, that adversely
affected her OWCP claim. The Commission finds that she does not allege
that the agency failed to provide necessary information or delayed the
processing of her OWCP claim in any way.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints
of discrimination 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 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 Howard v. Department of the Navy,
EEOC Request No. 05970852(February 11, 1999). 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.
Complainant initiated contact with an EEO Counselor on May 10, 1999. The
events referenced in claim (1) occurred on January 14, 1999. The incident
cited in claim (2) occurred on January 25, 1999. Complainant clearly did
not contact an EEO Counselor within the 45-day limitation period with
regard to these matters. It is unreasonable in light of the evidence
to believe that complainant did not develop a reasonable suspicion of
discrimination until May 1999.
Complainant claims that her complaint reflects a continuing violation.
The Commission has waived the untimeliness of some claims within a
complaint where the complainant alleges a continuing violation; that is,
a series of related discriminatory acts, one of which fell within the
time period for contacting an EEO Counselor. Howard Grayson v. United
States Postal Service, EEOC Request No. 05990160(December 3, 1999).
Here, complainant failed to satisfy this criteria, as she did not raise
a discriminatory act which fell within the time period for contacting
an EEO Counselor.
Furthermore, we find that complainant failed to submit adequate
justification for an extension of the 45-day limitation period.
Accordingly, after a careful review of the record, we find that the
agency properly dismissed the complaint and hereby AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 Hadden, Director
Office of Federal Operations
April 13, 2001
Date
______________
Date