01A02807
03-27-2001
Celia F. Brown, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Celia F. Brown v. United States Postal Service
01A02807
March 27, 2001
.
Celia F. Brown,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A02807
Agency No. 4-A-117-0013-99
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated February 9, 2000, dismissing her complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. In her complaint, complainant alleged that
she was subjected to discrimination on the bases of race, color, sex,
and age when on August 24, 1998, her schedule was changed.
The agency dismissed the complaint for untimely counselor contact, finding
that complainant initiated contact with a counselor on October 9, 1998,
forty-six days after the incident alleged. The agency also dismissed
the complaint for failure to state a claim and for being moot.
On appeal, complainant requests to add the basis of retaliation.
She contends that the dates on the Counselor's Report were incorrect.
Complainant fails to specify a different incident or counselor contact
date, but asserts that her claim is �ongoing.�
The Counselor's Report, dated April 8, 1999, identifies the
incident alleged as occurring July 11, 1998, and complainant's
initial counselor contact occurring October 9, 1999. Complainant's
Information-for-Precomplaint-Counseling form reveals that complainant
requested counseling on October 9, 1998.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints
of discrimination 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 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.
Forty-five days from Monday, August 24, 1998 is Thursday, October 8,
1998. Complainant has presented no argument or evidence suggesting
that her schedule was changed any other time than on August 24, 1998.
Even if complainant continued to work under the new schedule, her claim
was not ongoing in nature. In determining when the limitation period is
triggered, the focus is on the time of the alleged discriminatory act,
not the time when the consequences of the act become most painful.
Delaware State College v. Ricks, 449 U.S. 250, 258 (1980)(citations
omitted). Therefore, the Commission finds that complainant was harmed
on the date her schedule was changed, August 24, 1998, and failed to
contact a counselor within forty-five days. Accordingly, the agency's
dismissal is AFFIRMED.<1>
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 27, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1Since we are affirming the agency's dismissal for untimely counselor
contact, we will not address the agency's alternative grounds for
dismissal, i.e., failure to state a claim and mootness.