01980731
10-07-1998
Kathleen A. McKinnon, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Kathleen A. McKinnon, )
Appellant, )
)
v. ) Appeal No. 01980731
) Agency No. 1C-441-0130-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning her complaint of unlawful employment discrimination,
in violation of Section 501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. �791 et seq. The final agency decision was received by appellant
on October 20, 1997. The appeal was postmarked October 31, 1997.
Accordingly, the appeal is considered timely (see 29 C.F.R. �1614.402(a)),
and is accepted in accordance with EEOC Order No. 960, as amended.
The record reflects that appellant initiated contact with an EEO
Counselor on April 2, 1997. In a document identified as Information
for Precomplaint Counseling, appellant stated that on January 30,
1997, she was informed by two agency officials that due to an injury on
duty, she was being demoted to a PTF and her salary would be reduced.
Appellant stated that she had been working on an arbitrary reassignment
since November 1996. Informal efforts to resolve her concerns were
unsuccessful.
On April 29, 1997, appellant filed a formal complaint, alleging that
she was the victim of unlawful employment discrimination on the basis of
disability. In that portion of the complaint form wherein complainants
are requested to indicate the date on which the alleged incident of
discrimination occurred, appellant indicated "11-29-96."
On October 17, 1997, the agency issued a final decision. Therein,
the agency determined that appellant's complaint was comprised of the
allegation that on November 29, 1996, appellant was notified by PS Form
50, that she would be reassigned from full time Letter Carrier to part
time flexible Clerk. The agency dismissed appellant's complaint for
failure to initiate contact with an EEO Counselor in a timely fashion.
Specifically, the agency found that appellant's alleged initial EEO
contact on April 29, 1997, was well beyond the forty-five day limitation
period with regard to an alleged discriminatory event that occurred on
November 29, 1996.
On appeal, appellant argues that as of February 14, 1997, she was a
full time Carrier Technician; that on February 27, 1997, she received
formal notification that her position was being changed from a full time
Carrier Technician to a PTF Clerk; and that her April 2, 1997 initial
EEO Counselor contact was therefore timely.
In response, the agency argues that appellant's complaint was properly
dismissed for failure to timely contact an EEO Counselor. The agency
notes that on appeal, appellant alleged that the alleged discriminatory
incident occurred on February 27, 1997; however, the agency further notes
that in her formal complaint, appellant alleged that the discriminatory
event occurred on November 29, 1996.
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 limitations period
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
In this case, the agency determined that appellant alleged that on
November 29, 1996, she was informed that she was being reassigned from
a full time Letter Carrier to a part time Clerk position, and that her
initial EEO Counselor contact on April 2, 1997, was therefore untimely.
The record in this case contains three separate dates provided by
appellant as the date that the alleged incident of discrimination
occurred: in the Information for Precomplaint Processing form,
appellant stated that the alleged discriminatory incident occurred
on January 30, 1997; in her formal complaint, she stated November
29, 1996; and on appeal, she states February 27, 1997. As there
is conflicting information in the record regarding when the matter
addressed in appellant's complaint precisely occurred, we are unable to
determine whether appellant's initial EEO Counselor contact was timely.
Accordingly, the agency's decision to dismiss appellant's complaint is
VACATED. Appellant's complaint is REMANDED to the agency for further
processing in accordance with the ORDER below.
ORDER
The agency is ORDERED to take the following action:
The agency shall conduct a supplemental investigation to ascertain the
exact date(s) that the matters addressed in appellant's formal complaint
purportedly occurred, as well as the date appellant first reasonably
suspected discrimination. Thereafter, the agency shall issue a final
decision or notify appellant that the agency is processing her complaint.
The supplemental investigation and issuance of the notice of processing
or new final decision must be completed within thirty (30) calendar days
from the date that this decision becomes final.
A copy of the new final agency decision or notice of processing must be
sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
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 (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. 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:
Oct. 7, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations