01980111
10-27-1998
Dixie T. Johnson, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Dixie T. Johnson v. United States Postal Service
01980111
October 27, 1998
Dixie T. Johnson, )
Appellant, )
)
v. ) Appeal No. 01980111
) Agency No. 4-H-390-0028-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
The Commission finds that the agency's August 26, 1997 decision
dismissing appellant's complaint on the basis that appellant failed to
contact an EEO counselor within the 45-day time limit provided by 29
C.F.R. �1614.105(a)(1) is proper. A review of the record shows that
appellant sought EEO counseling on November 4, 1996, alleging that she
had been discriminated against on the bases of race (black), color (of
color) and reprisal (for being the daughter of an employee the agency
does not like)<1> when on March 25, 1996, she was non-selected for a
clerk-carrier position.
In support of its decision, the agency stated that "EEO posters, which
provide information concerning the appropriate official to contact
regarding EEO matters as well as the prescribed time limits, were and
are on display in the Brookhaven postal facility". The Commission has
held that complainants who are not federal employees, i.e., applicants
for employment such as appellant, will not be held to the same knowledge
of the 45-day requirement for initiating informal EEO counseling as
complainants who are federal employees. See Kavalauskas v. Dept.of
the Air Force, EEOC Request No. 05900608 (August 16, 1990). However,
to excuse her untimeliness, appellant did not claim that she was unaware
of the 45-day time limit. Moreover, on appeal, appellant contends that
she "waited to be treated fair[ly]".
The Commission applies a "reasonable suspicion" standard to the
triggering date for determining the timeliness of the contact with an
EEO counselor. Cochran v. United States Postal Service, 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). We find that
appellant did not contact an EEO counselor within 45 days of the alleged
discriminatory event and she did not allege that she was unaware of the
time limits for counselor contact. Accordingly, the agency's decision
to dismiss the complaint for untimely EEO counselor contact is 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
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. �l6l4.604(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 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:
October 27, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 The agency dismissed the basis of reprisal, finding that there was no
evidence that appellant had engaged in prior EEO activity. Because we
affirm the dismissal of the complaint on the grounds of untimely counselor
contact, we need not address the basis of reprisal.