01a02700
08-03-2000
Carolyn J. Tagliente, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Carolyn J. Tagliente, )
Complainant, )
)
v. ) Appeal No. 01A02700
) Agency No. 4B-120-0009-00
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On February 14, 2000, complainant filed a timely appeal with this
Commission from an agency decision pertaining to 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.<1> The
agency characterized her complaint as alleging that she was subjected to
discrimination on the basis of sex when, during the week of August 16,
1999, her request for advanced sick leave was denied.
Pursuant to EEOC Regulations, the agency dismissed complainant's complaint
for untimely EEO Counselor contact. Specifically, the agency found
that complainant's October 18, 1999 EEO Counselor contact was more than
forty-five days beyond the August 16, 1999 date she was notified her
request for advanced sick leave was denied, and was therefore untimely.
In an appeal letter dated February 7, 2000, complainant asserts that she
received the denial of her request for advanced sick leave on August 23,
1999, and, after her request for reconsideration was not answered, she
contacted an EEO Counselor on October 5, 1999. In a second submission
dated April 7, 2000, however, complainant states that she contacted an
EEO Counselor on October 18, 1999. The second submission also asserted
that, as she continued to receive her full pay check, complainant did
not realize until she received a pay stub on September 17, 1999 that
the agency was deducting her annual leave and that her request for
reconsideration had not been approved.
In response to complainant's initial submission, the agency asserts
that the EEO Counselor's report indicates that complainant received
notification of the denial of her request during the week of August 16,
1999, and that she contacted the EEO Counselor on October 18, 1999.
We note that the EEO Counselor's report also states that, when asked
why she waited until October 18, 1999 to contact the EEO office when
she knew in August that her request was denied, complainant responded
that �she attempted to work the situation out on her own.�
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 days of the date of
the matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five 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 day
limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
Upon review of the record, we find that the agency has properly dismissed
complainant's complaint. Although the exact date complainant received
notification her advanced sick leave was denied is unclear, complainant
herself asserts that she received notice no later than August 23, 1999.
In spite of her claim that she did not know until September 17, 1999 that
her request for reconsideration had not been approved, the record shows
that complainant should have reasonably suspected discrimination on the
date she first became aware that her advanced leave request was denied.
It is also clear from the record that, despite initially stating on appeal
that she contacted the EEO Counselor on October 5, 1999, complainant's
initial EEO Counselor contact was made on October 18, 1999. Therefore,
as complainant's October 18, 1999 initial EEO counselor contact occurred
more than forty-five days after the August 23, 1999 date she should
have reasonably suspected discrimination, it was clearly untimely.
Consequently, we find that the agency properly dismissed complainant�s
complaint for untimely EEO Counselor contact.
Accordingly, the agency's decision dismissing complainant's complaint
is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, MUST BE FILED
WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR
DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS OF
RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.405); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).
All requests and arguments must 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 timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.604). The request or opposition must
also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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. 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 (Z1199)
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:
August 3, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.