01981101
11-05-1998
Melody A. Hendrix, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Melody A. Hendrix, )
Appellant, )
) Appeal No. 01981101
v. ) Agency No. 1-I-531-0197-97
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
On November 19, 1997, appellant filed an appeal with this Commission
from an October 7, 1997 final agency decision, which dismissed her
complaint for failure to contact an EEO Counselor in a timely manner.
The agency failed to provide a certified mail return receipt or any
other material capable of establishing the date when appellant received
the final agency decision. Accordingly, the Commission presumes that
appellant's appeal was filed within 30 days of appellant's receipt of the
agency's final decision. Accordingly, the appeal is accepted as timely.
See 29 C.F.R. �1614.402(a); EEOC Order No. 960.
In her September 20, 1997 complaint, appellant alleged discrimination on
the bases of race (Black), sex (female), and disability (not specified)
when on August 1, 1995, she was told there was no work available.
In dismissing the complaint, the agency noted that because appellant did
not contact an EEO Counselor until August 8, 1997, her contact was beyond
the requisite 45 days and, therefore, was untimely. The agency also
noted that appellant was aware of the time limit and that she should
have had a reasonable suspicion of discrimination when the alleged
discriminatory incident occurred.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that an aggrieved
person initiate contact with a Counselor within 45 days of the date of the
matter alleged to be discriminatory or, in the case of a personnel action,
within 45 days of the effective date of the action. EEOC Regulation
29 C.F.R. �1614.105(a)(2) permits the time period to be extended under
certain circumstances and 29 C.F.R. �1614.604(c) provides that the
time limits in Part 1614 are subject to waiver, estoppel and equitable
tolling. The Commission has adopted a "reasonable suspicion" standard (as
opposed to a "supportive facts" standard) to determine when the 45-day
limitation period is triggered. See Ball v. U.S. Postal Service, EEOC
Request No. 05880247 (July 6, 1988). Thus, the limitation period is not
triggered until a complainant should reasonably suspect discrimination,
but before all the facts that would support a charge of discrimination
have become apparent. Waiting until one has proof of discrimination
before initiating a complaint can result in untimely contact. See Bracken
v. U.S. Postal Service, EEOC Request No. 05900065 (March 29, 1990).
Upon review, we find that the agency's dismissal was proper. The record
reveals that the alleged discriminatory incident occurred on August
1, 1995. The record also reveals, and it is undisputed, that appellant
did not contact an EEO Counselor until August 8, 1997. Appellant does
not dispute that she was aware of the time limit. Accordingly, we find
that EEO Counselor contact was beyond the required 45 days. Although on
appeal appellant contends that she did not become aware until "September
25, 1997," that other employees were not terminated but were instead
accommodated by the agency, we do not find the explanation sufficient
to extend the time limit. In her complaint, appellant alleged that
she talked to union officials and was informed that employees with
the same type of restriction were not terminated. We find that the
nature of the alleged discriminatory incident should have given rise
to a reasonable suspicion on the part of appellant that she was being
discriminated against. Appellant failed to act with due diligence in
the pursuit of her claim inasmuch as she did not take any further action
until over two years after the alleged discriminatory event occurred.
See O'Dell v. Department of Health and Human Services, EEOC Request
No. 05901130 (December 27, 1990).
Consistent with our discussion herein, the agency's dismissal of the
complaint 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. 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:
November 5, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations