01980638
05-26-1999
Vivien Whitley, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Vivien Whitley v. United States Postal Service
01980638
May 26, 1999
Vivien Whitley, )
Appellant, )
)
v. ) Appeal No. 01980638
) Agency No. 4-A-110-1118-96
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
The Commission finds that the agency's September 26, 1997 decision
dismissing a portion of appellant's complaint on the bases of failure
to state a claim and untimely EEO counselor contact is proper, pursuant
to the provisions of EEOC Regulation 29 C.F.R. �1614.107(a) and (b).
In her formal complaint of discrimination appellant alleged that she had
been discriminated against on the bases of race (Black), sex (female)
and reprisal for prior EEO activity when: (1) on March 20, 1996, she
was denied reinstatement; (2) from her arrest in February 1989, and
continuing until her termination from the Postal Service on May 8, 1989,
she was subjected to ongoing harassment; and, (3) on May 8, 1996, she
was informed by an EEO Counselor that if she pursued her EEO complaint,
she would be prosecuted on criminal charges.
The agency issued a final decision on June 7, 1996, and another final
decision on September 26, 1997. In its September 26, 1997, decision,
the agency accepted allegation (1) for investigation. Allegation (2)
was dismissed on the grounds that it raised the same issue that had
been decided by the agency because it was part of the allegations
raised by appellant in a civil suit filed in a U.S. District Court.
The agency also dismissed allegation (2) on the grounds of untimely
EEO counselor contact. The agency found that although the alleged
discriminatory harassment occurred between February 1989, through May
8, 1989, appellant did not seek EEO counseling until April 25, 1996.
Allegation (3) was dismissed on the grounds of failure to state a claim.
On appeal, appellant contends that she was harassed from 1989 to 1996.<1>
In allegation (2) appellant claimed that she had been discriminated
against on the bases of race, sex and reprisal for prior EEO activity
when from February 1989, through her termination on May 8, 1989, she
was subjected to continuous harassment. On appeal, she contends that
she was the subject of reprisal discrimination from 1989, through 1996.
The Commission applies a "reasonable suspicion" standard to the triggering
date for determining the timeliness of the contact with an EEO counselor .
Cochran v. United States Postal Service, EEOC Request No. 05920399 (June
18, 1992). Under this standard, the time period for contacting an EEO
counselor is triggered when the complainant should reasonably suspect
discrimination, but before all the facts that would support a charge
of discrimination may have become apparent. Id.; Paredes v. Nagle, 27
FEP Cases 1345 (D.D.C. 1982). Appellant's employment was terminated in
1989. According to the counselor's report, she then sought arbitration
and did not prevail in arbitration. The Commission has specifically held
that informal efforts to resolve a dispute or the filing of a grievance
do not toll the running of the time limit to contact an EEO counselor.
Hosford v. Department of Veterans Affairs, EEOC Request No. 05890038
(June 9, 1989). On April 25, 1996, appellant contacted an EEO counselor.
She waited 6 years to raise the issue of her termination. She claims
that she was discriminated against from 1989 to 1996; however, she has
failed to provide evidence sufficient to support her contention of a
6-year period of harassment, especially when she was not employed by the
agency after 1989. Accordingly, allegation (2) was properly dismissed
by the agency on the grounds of untimely EEO counselor contact.
Regarding allegation (3), the Commission notes that EEOC Regulations
provide than an EEO Counselor shall never attempt in any way to restrain
an aggrieved person from filing a complaint. 29 C.F.R. �1614.105(g).
Appellant claims that on May 8, 1996, she was threatened with
the possibility of criminal charges if she decided to pursue her
EEO complaint. The agency dismissed this allegation on the grounds of
failure to state a claim. We agree that appellant has not shown how she
was aggrieved inasmuch as she filed a complaint. Accordingly, allegation
(3) was properly dismissed on the basis of failure to state a claim.
Based on the foregoing, the agency's final decision dismissing
allegations(2) and (3) 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. �l6l4.604(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 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:
May 26, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 According to the EEO Counselor's Report, agency personnel records show
appellant was terminated from her position at the agency in 1989.