Amy Young, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 28, 1999
01983485 (E.E.O.C. Apr. 28, 1999)

01983485

04-28-1999

Amy Young, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Amy Young v. United States Postal Service

01983485

April 28, 1999

Amy Young, )

Appellant, )

)

v. ) Appeal No. 01983485

) Agency No. 1A-111-0097-97

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

Appellant filed an appeal with this Commission from a final decision of

the agency concerning her complaint of unlawful employment discrimination

in violation of Title VII of the Civil Rights Act of 1964, as amended, 42

U.S.C. �2000e et seq. and Section 501 of the Rehabilitation Act of 1973,

as amended, 29 U.S.C. �791 et seq. The final decision was issued on

March 17, 1998. The appeal was postmarked April 3, 1998. Accordingly,

the appeal is timely (see 29 C.F.R. �1614.402(a)), and is accepted in

accordance with EEOC Order No. 960, as amended.

On July 31, 1997, appellant initiated contact with an EEO Counselor.

Informal efforts to resolve her concerns were unsuccessful.

On February 12, 1998, appellant filed a formal complaint, alleging that

she was the victim of unlawful employment discrimination on the bases

of race, color, national origin, sex, and disability.

On March 17, 1998, the agency issued a final decision. Therein, the

agency found that appellant's formal complaint was comprised of four

allegations, that were identified in the following fashion:

1. On March 22, 1996, you were issued a Letter of Warning for failing

to meet the attendance requirements of your position.

2. On July 30, 1997, you were recorded as being absent without official

leave (AWOL) for 4.76 hours.

3. On August 1, 1997, you were issued a seven (7) calendar day

suspension for failing to meet the attendance requirements of your

position, which was subsequently reduced to a Letter of Warning in the

grievance procedure.

4. On August 12, 1997, you were issued a fourteen (14) day suspension

for being absent without official leave (AWOL) and conduct unbecoming

a postal employee, which was subsequently reduced to a seven (7) day

suspension in the grievance procedure.

The agency accepted allegations 2 - 4 for investigation. The agency

dismissed allegation 1 on the grounds that appellant failed to initiate

timely contact with an EEO Counselor. Specifically, the agency found that

with respect to the matter raised in allegation 1, appellant's initial

EEO Counselor contact on August 18, 1997, was beyond the forty-five

limitation period for timely contact an EEO Counselor.

On appeal, appellant acknowledges that she was issued a Letter of Warning

on March 22, 1996. Appellant argues, however, that when the Letter of

Warning was issued, she was informed by her Supervisor that it would be

reduced to a discussion. Appellant further argues that, as a consequence,

she "felt that [the Letter of Warning] was taken care of and that the

issue was over." Appellant also argues that she did not become aware

that the Letter of Warning was still active until she was issued the

August 1, 1997 disciplinary action that is the subject of allegation 3.

Appellant states that, on August 1, 1997, and again on August 12, 1997,

she was the recipient of disciplinary action which cited a Letter of

Warning issued on March 22, 1996, as an element that had been considered

in the issuance of the August 1997 disciplinary actions.

In support of her arguments, appellant submits a memorandum from her

Supervisor dated August 22, 1997. Therein, appellant's Supervisor made

the following statement:

On 3/22/96, I issued a letter of warning to [appellant] for the charge

of absence and lateness and it was reduced to a discussion and I believed

it on Step 1 to be reduced to a discussion.

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. USPS,

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.

We are unpersuaded by appellant's contention that she did not develop a

reasonable suspicion of unlawful employment discrimination upon issuance

of a letter of warning in March 1996. We are, moreover, unpersuaded by

appellant's argument that her delay in contacting an EEO Counselor was

justified by her Supervisor's assurances that the March 1996 letter of

warning was reduced to an official discussion. We find that appellant

failed to exhibit due diligence or prudent regard for her rights.

See Baldwin County Welcome Center v. Brown, 466 U.S. 147, 151 (1984)

(per curiam) ("One who fails to act diligently cannot invoke equitable

principles to excuse lack of diligence"); Rhys v. USPS, 886 F.2d 443,

446 (1st. Cir. 1989) ("to find succor in equity a Title VII plaintiff

must have diligently pursued her claim"). Appellant has presented

no persuasive arguments or evidence to show that she contacted an EEO

Counselor with regard to allegation 1 in a timely manner pursuant to

29 C.F.R. �1614.105(a)(1). Accordingly, the agency's final decision

dismissing allegation 1 is hereby 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. 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 filed your appeal with the

Commission. 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. 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 28, 1999

____________________________

DATE Ronnie Blumenthal, Director

Office of Federal Operations