01982810
04-28-1999
Lori Murray, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Lori Murray v. United States Postal Service
01982810
April 28, 1999
Lori Murray, )
Appellant, )
)
v. ) Appeal No. 01982810
) Agency No. 4-C-175-0019-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
The appellant timely filed an appeal with this Commission from a final
decision, dated January 21, 1998, which the agency issued pursuant
to EEOC Regulation 29 C.F.R. �1614.107(b). The Commission accepts the
appellant's appeal in accordance with EEOC Order No. 960, as amended.
The final agency decision dismissed the appellant's complaint allegations
for untimely EEO counselor contact.
EEOC Regulation 29 C.F.R. �1614.105(a)(2) provides that the agency or
the Commission shall extend the 45-day time limit when the individual
shows that he did not know and reasonably should not have known that the
discriminatory matter or personnel action occurred. The limitations
period is not triggered until a complainant reasonably should have
suspected discrimination, but before all the facts that would have
supported a charge of discrimination had become apparent. Schermerhorn
v. United States Postal Service, EEOC Request No. 05940729 (February 10,
1995).
In order to commence the running of the 45-day-limitations period for
requesting EEO counseling, the complainant must have either actual
or constructive knowledge of the time limit. York v. Department of
Veterans Affairs, EEOC Request No. 05940575 (November 3, 1994).<1> The
Commission has held that a generalized affirmation that an agency posted
EEO information, without specific evidence that the poster actually
contained notice of the specified time limits, is insufficient to
demonstrate constructive knowledge of the time limits for EEO counselor
contact. Pride v. United States Postal Service, EEOC Request No. 05930134
(August 19, 1993) (citing Polsby v. Shalala, 113 S. Ct. 1940 (1993),
vacating and remanding Polsby v. Chase, 970 F.2d 1360 (4th Cir. 1992).
The record demonstrates that an EEO Poster describing the EEO process,
including the 45-day time limitation for EEO counselor contact, was
posted at the East York Post Office when the appellant worked there,
beginning in January 1995. Therefore, the Commission finds that the
appellant should be deemed to have had constructive knowledge of the EEO
process, including the 45-day time limitation for EEO counselor contact,
as early as January 1995.
The record also demonstrates that the appellant suspected discrimination
at least as early as March 1995, when she saw two employees working
there who had been selected over her. However, she did not contact
an EEO counselor until August 2, 1995. The appellant apparently chose
not to pursue her complaint at that time. She again sought counseling
by letter dated November 4, 1997, more than two years after she first
suspected discrimination.
Given these facts, the Commission finds that the appellant's complaint
was untimely filed. Therefore, the Commission AFFIRMS the agency's
dismissal of the appellant's December 19, 1997 complaint.
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. 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:
April 28, 1999
______________
Date Ronnie Blumenthal, Director
Office of Federal Operations
1The Commission has held EEOC Regulation 29 C.F.R. �1614.102(a)(4)
imposes an obligation on the agency to make written materials available to
all employees and applicants, informing them of the variety of equal
employment opportunity programs and administrative and judicial remedial
procedures available to them, and to prominently post such written
materials throughout the workplace, including in all personnel and EEO
offices. Spell v. United States Postal Service, EEOC Request No. 05950095
(August 24, 1995).