01981168
04-08-1999
Monica L. Clark Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Monica L. Clark v. United States Postal Service
01981168
April 8, 1999
Monica L. Clark )
Appellant, )
)
v. ) Appeal No. 01981168
) Agency No. 4-G-730-0168-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
The Commission finds that the agency's October 30, 1997 decision
dismissing appellant's complaint on the basis of untimely EEO
counselor contact is proper, in part, pursuant to the provisions of 29
C.F.R. �1614.107(b).
The record shows that appellant sought EEO counseling on June 3, 1997,
alleging that she had been discriminated against on the bases of race
(Native American), sex (female), age (46), physical disability (bilateral
Carpal Tunnel syndrome) and mental disability (stress) when on May 23,
1997, she received a decision letter upholding the letters of warning
and demand that had been issued on March 14, 1997, and March 27, 1997,
respectively. The record shows that by letter dated March 14, 1997,
appellant was informed that a proposed letter of warning was being
issued to her in lieu of a 7 calendar day suspension. Said letter
advised appellant that she could answer the proposed letter of warning
and that her response would be considered before a decision was rendered.
The record shows that appellant's representative responded on her behalf
on April 9, 1997. By letter dated March 27, 1997, appellant was notified
by the agency that she owed $694.60 to the agency as a result of her
failure to perform clerk audit in a timely manner. Appellant was also
notified that said debt was due when presented. By letter dated May 6,
1997, appellant was informed that the agency had decided to impose a
letter of warning in lieu of a 7 calendar day suspension.
The agency issued a final decision dismissing the complaint on the grounds
of untimely EEO counselor contact. The agency found that appellant's
June 3, 1997 EEO counselor contact occurred beyond the 45-day time limit
provided by EEOC Regulations after noting that appellant was aware of the
alleged incidents since March 17, 1997, and March 27, 1997, respectively.
The Commission has held that when a personnel action is involved, the
time period for contacting the EEO counselor begins with the effective
date of the action, not the notice of intent. See Dudley v. United
States Postal Service, EEOC Appeal No. 01960067 (March 12, 1996).
The March 14, 1997 letter advised appellant regarding a proposal to
issue a letter of warning. However, she was also advised to respond to
the agency's proposal before a decision was issued. Said decision was
issued by letter dated May 6, 1997. Accordingly, appellant's June 3,
1997 initial EEO counselor contact was timely. The agency erred by
dismissing the portion of the complaint that raises the May 6, 1997 letter
of warning. The decision to dismiss this allegation is hereby REVERSED.
This allegation is REMANDED for further processing in accordance with
this decision and applicable regulations.
Concerning the March 27, 1997 letter of demand,<1> the record shows that
appellant was notified that she owed the amount of $694.60 to the agency
and that this debt was "due when presented". Appellant was also advised
that she could appeal the letter of demand pursuant to agency regulations.
The record further shows that appellant paid said debt by check dated May
30, 1997. The Commission has held that internal appeals of an agency
action do not toll the running of the applicable limitations period.
See Hosford v. Department of Veterans Affairs, EEOC Request No. 05890038
(June 9, 1989). Accordingly, since March 28, 1997, appellant was aware
that she owed the agency the amount in question and that payment of said
debt was "due when presented". Therefore, her EEO counselor contact on
June 3, 1997, was untimely. Accordingly, the agency's dismissal of the
appellant's allegation concerning the letter of demand was appropriate
and is hereby AFFIRMED.
ORDER (E1092)
The agency is ORDERED to process the remanded allegation in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegation within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
of the appropriate rights within one hundred fifty (150) calendar days
of the date this decision becomes final, unless the matter is otherwise
resolved prior to that time. If the appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant and a copy
of the notice that transmits the investigative file and notice of rights
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� (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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
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 your appeal with the
Commission, until such time as the agency issues its final decision
on your complaint. 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 8, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 Received by appellant on March 28, 1997.