01A11905_r
05-01-2001
Mary W. Williams v. United States Postal Service
01A11905
May 1, 2001
.
Mary W. Williams,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A11905
Agency No. 1A-072-0038-00
DECISION
Complainant filed a timely appeal with this Commission from an
agency decision pertaining to 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.; the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.;
and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. The Commission accepts the appeal
in accordance with 29 C.F.R. � 1614.405.
On March 9, 2000, complainant contacted the EEO office claiming that she
was discriminated against based on race, color, sex, age, disability and
in reprisal for prior protected activity. Informal efforts to resolve
complainant's concerns were unsuccessful. Subsequently, on July 6, 2000,
complainant filed a formal complaint. In its decision, the agency framed
the claims as follows: on January 1, 2000, complainant's supervisor 1)
allegedly snatched a telephone from complainant's hand, causing an
injury; and 2) looked at complainant in a threatening manner.
On January 9, 2001, the agency dismissed the complaint for untimely EEO
Counselor contact. The agency determined that complainant's contact
regarding the January 1, 2000 event was twenty-three days beyond the
forty-five-day time limitation.
On appeal, complainant argues that her contact was not untimely because
�... I went to a meeting on January 4, 2000 at which time management and
my counselee was present.� Complainant also contends that she reached the
Newark EEO office in January and was advised to contact the main office
in New York to obtain a pre-complaint form. According to complaint,
she did not receive the forms until the end of February. Finally,
complainant asserts that the EEO Counselor advised her that the time
limit was forty-five business days, rather than calendar days.
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 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.
Here, the record establishes that complainant's March 9, 2000 contact,
regarding a January 1, 2000 event, was beyond the forty-five day
time limitation. On appeal, complainant presents several arguments.
For example, complainant makes reference to a meeting with management on
January 4, 2000. However, it does not appear that this was a meeting
with the EEO office. Moreover, she refers to a settlement agreement
that addresses a separate EEO complaint. Lastly, we are not persuaded
by complainant's contentions regarding the pre-complaint form and
her understanding that she had forty-five business days to contact an
EEO Counselor, as opposed to calendar days. Assuming, arguendo, that
complainant had such an assumption, her initial EEO Counselor contact of
March 9, 2000 was more than forty-five business days after the alleged
discriminatory events of January 1, 2000. Therefore, the Commission
finds that complainant has not presented sufficient justification for
extending or tolling the time limit for contacting an EEO Counselor.
Accordingly, the agency's decision to dismiss the complaint was proper
and is hereby AFFIRMED.
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 M. Hadden, Director
Office of Federal Operations
May 1, 2001
__________________
Date