01982757_r
03-18-1999
Joann Shepherd, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Joann Shepherd, )
Appellant, )
)
v. ) Appeal No. 01982757
) Agency No. 1-A-111-0025-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On March 4, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) received by her on February 24,
1998, pertaining to 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., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. �621 et seq.
On October 15, 1997, appellant initiated EEO contact alleging that she
was subjected to discrimination on the bases of race (African-American),
and age (over 40) when:
Appellant was promised a career position if she passed a test, but she
was never hired; employees were hired for career positions who received
lower scores than appellant, or had not taken the tests at all.
On December 22, 1997, appellant filed a formal complaint raising the same
issue as described above. On February 20, 1998, the agency issued a final
decision dismissing appellant's complaint pursuant to EEOC Regulation 29
C.F.R. �1614.107(a), for failure to state a claim, and alternatively under
EEOC Regulation 29 C.F.R. �1614.107(b), for untimely counselor contact.
Specifically, the agency noted that appellant failed to indicate the
bases of alleged discrimination in her formal complaint and, therefore,
found that she failed to state a claim. Regarding her EEO contact,
the agency found that appellant should have had reasonable suspicion of
her alleged discrimination sometime in 1994, but she did not contact a
counselor until October 15, 1997.
On appeal, appellant provides several statements addressing the merits
of her complaint. Appellant contends that �employees were hired in 1994
with a lower score,� and provided copies of her own scores for tests
taken from 1993 - 1997. Additionally, we note that appellant indicated
to the Counselor that on October 14, 1993, one of her scores was taken
off of the registry of available applicants.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of
discrimination should 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 Ball v. USPS, EEOC Request
No. 05880247 (July 6, 1988). Thus, the time limitation can be triggered
before all the facts that support a charge of discrimination have become
apparent, but not until a complainant reasonably suspects discrimination.
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.
The Commission finds that appellant clearly developed, or should have
developed, a reasonable suspicion of discrimination when applicants with
lower test scores were hired for career positions. By appellant's own
statement, she was aware that lower scoring applicants had been hired
in 1994. Appellant continued to take tests, and continued to be passed
over after 1994. Nonetheless, appellant did not request counseling until
October 15, 1997. Therefore, we find that appellant's initial counselor
contact was not within 45 days of acquiring a reasonable suspicion,
and was untimely.<1>
Accordingly, the agency's decision to dismiss appellant's complaint for
untimely 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. �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. 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).
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 18, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations 1In view of our affirmance of the
agency's dismissal of appellant's complaint on the grounds of
untimely EEO contact, we will not address the agency's alternative
grounds for dismissal, i.e., failure to state a claim.