01975202
02-25-1999
Myrna Bicknell, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Myrna Bicknell v. United States Postal Service
01975202
February 25, 1999
Myrna Bicknell, )
Appellant, )
)
)
v. ) Appeal No. 01975202
) Agency No. 4F-956-0033-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
Appellant filed the instant appeal from a decision dated May 15, 1997,
dismissing appellant's complaint pursuant to 29 C.F.R. �1614.107(b)
for failure to contact an EEO counselor in a timely manner.
Appellant alleged in her complaint that she was discriminated against
based on race (Hispanic), color (brown), sex (female), disability
(physical and mental) and reprisal when on March 4, 1996, she was
compelled to take disability retirement due to a continuing pattern of
harassment and discrimination.
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. United
States Postal Service, 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. However, the Commission has held that
the time limit for contacting an EEO Counselor may be waived as to certain
allegations within a complaint if a continuing violation is demonstrated.
Guy v. Department of Energy, EEOC Request No. 05930703 (January 4, 1994);
Vissing v. Nuclear Regulatory Commission, EEOC Request No. 05890308 (June
13, 1989). To state a claim for a continuing violation, a complainant
must allege a series of related acts, one or more of which falls within
the limitations period.
Appellant alleges a continuing violation and thus states that her
counselor contact was therefore timely. However, in appellant's complaint
she alleges that the discrimination continued from February 15, 1995,
until March 4, 1996. Appellant did not contact a counselor until October
25, 1996 which was well past the 45 day limitation. Therefore, even if
appellant alleges a continuing violation, her counselor contact is still
untimely because none of the alleged events fell within the prescribed
limitations period.
Accordingly, the agency's final decision dismissing appellant's 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:
Feb 25, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations