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