01985564
11-01-1999
Barbara A. Adams, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Barbara A. Adams v. United States Postal Service
01985564
November 1, 1999
Barbara A. Adams, )
Appellant, )
)
v. ) Appeal No. 01985564
) Agency No. 4-H-390-0078-98
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. The final agency decision was issued on
June 10, 1998. The appeal was postmarked July 8, 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.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint on the grounds of untimely EEO contact.
BACKGROUND
Appellant initiated contact with an EEO Counselor on January 16, 1998.
On May 4, 1998, appellant filed a formal EEO complaint wherein she alleged
that she had been discriminated against on the bases of her race (black)
and in reprisal for her previous EEO activity when on September 4, 1997,
she was denied a transfer to the Madison, Mississippi Post Office due
to there being no vacancies at that facility. Appellant alleged that a
white employee was transferred to the Madison, Mississippi facility on
January 3, 1998.
In its final decision, the agency dismissed appellant's complaint on the
grounds of untimely EEO contact. The agency determined that appellant's
contact of an EEO Counselor on January 16, 1998, was more than 45
days after the alleged discrimination occurred on September 4, 1997.
The agency stated that waiting until one has supporting facts or proof
of discrimination before initiating a complaint is not justification to
extend the 45-day time limit.
On appeal, appellant contends that her EEO contact was timely. Appellant
indicates that she promptly filed her complaint after she learned of a
white employee's transfer to the Madison facility on January 3, 1998.
According to appellant, there is a pattern of racial discrimination
which can be seen by the hiring for the positions for which she applied
at the Madison Post Office. Appellant indicates that white individuals
have been selected to fill vacancies for which she applied in May 1996,
on June 7, 1997, on January 3, 1998, and in April 1998.
ANALYSIS AND FINDINGS
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 45 days of the effective date of the action.
EEOC Regulation 29 C.F.R. �1614.105(a)(2) provides that the agency or the
Commission shall extend the 45-day time limit when the individual shows
that he or she was not notified of the time limits and was not otherwise
aware of them, that he or she did not know and reasonably should not have
known that the discriminatory matter or personnel action occurred, that
despite due diligence he or she was prevented by circumstances beyond his
or her control from contacting the counselor within the time limits, or
for other reasons considered sufficient by the agency or the Commission.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the limitation
period was triggered. See Ball v. USPS, EEOC Request No. 05880247 (July
6, 1988). The time period is triggered as soon as a complainant suspects
discrimination, and the complainant may not wait until all supporting
facts have become apparent. Peets v. United States Postal Service,
EEOC Request No. 05950725 (March 28, 1996).
The record reveals that appellant was denied a transfer to the Madison,
Mississippi Post Office on September 4, 1997. Appellant contacted an
EEO Counselor on January 16, 1998. On appeal, appellant indicates that
she was not selected for two prior positions at the Madison Post Office
for which white individuals were selected. Appellant does not claim
that she was unaware of the alleged discrimination until the selection
in January 1998; since there were two prior selections of which she
purportedly was aware. Consequently, we find that appellant failed to
present adequate justification to warrant an extension of the 45-day
time limit. Accordingly, the agency's dismissal of appellant's complaint
on the grounds of untimely EEO contact was proper and 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:
November 1, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations