01984277
06-23-1999
Christine Minet, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Christine Minet v. United States Postal Service
01984277
June 23, 1999
Christine Minet, )
Appellant, )
)
v. ) Appeal No. 01984277
) Agency No. 1-B-021-0025-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
The Commission finds that the agency's April 8, 1998 decision dismissing
appellant's complaint on the grounds of untimely EEO counselor contact
and because one of the allegations had not been brought to the attention
of the EEO counselor, is proper pursuant to the provisions of 29
C.F.R.�1614.107(a).
The record shows that appellant sought EEO counseling on November 14,
1997, alleging that she had been discriminated against on the bases of
sex (female), national origin (Polish/French/Lithuanian) and age (46)
when: (1) she was sent for Fitness For Duty examinations on February
14, 1997, March 31, 1997 and June 11, 1997; (2) she was issued a notice
of removal effective May 18, 1997; (3) she was found unfit for duty by
letter dated June 13, 1997; (4) she was subjected to ongoing harassment
with derogatory pictures being left on her car and her work station;
(5) a dummy was left in a dumpster in her apartment building and a dead
dog was left in the road.
After being issued the notice of the right to file a formal complaint on
February 27, 1998, appellant filed a formal complaint of discrimination
alleging that she had been discriminated against on the bases of sex,
national origin and age when: (1) she was sent for Fitness For Duty
examinations on February 14, 1997, March 31, 1997 and June 11, 1997;
(2) on unspecified dates, she has been subjected to ongoing harassment
with derogatory pictures left on her car and work station; (3) on May 13,
1997, after the death of one of her coworkers, a dummy with red paint
was found in the dumpster of her apartment and a dead dog was found in
the road in the vicinity of the home of the deceased coworker; and,
(4) since February 27, 1998, oil tankers have been following her car
and she found an Employee Assistance Program (EAP) pamphlet in her mail.
The agency issued a final decision dismissing allegations (1) - (3) on
the grounds of untimely EEO counselor contact. The agency found that
although appellant's last day of work was May 23, 1997, she did not seek
EEO counseling until November 14, 1997. Allegation (4) was dismissed
on the basis that appellant had not brought it to the attention of the
EEO counselor.
On appeal, the agency contends that appellant was aware of the 45-day time
limit because she had sought EEO counseling on "five prior occasions".
The agency also contends that "none of the incidents cited in allegations
(1), (2) and (3) occurred within 45 days of counselor contact".
The agency further contends that appellant's continuing violation
claim is not appropriate because she "had reasonable suspicion for two
reasons: (1) she filed a grievance on May 30, 1997, as stated by her
in her pre-complaint information; and (2) the circumstances of the FFD
examinations and the removal action should have triggered an awareness
of suspicion of discrimination".
The Commission has held that where there is an issue of timeliness, the
agency always bears the burden of obtaining sufficient information to
support a reasoned determination as to timeliness. Williams v. Department
of Defense, EEOC Request No. 05920506 (August 25, 1992). Concerning
appellant's complaint, the agency has met its burden.
The Commission has adopted a reasonable suspicion standard for determining
whether contact with an EEO counselor is timely. Ball v. United States
Postal Service, EEOC Request No. 05880247 (July 6, 1988). Under this
standard, the regulatory limitations period "is not triggered until a
complainant reasonable suspects discrimination, but before all the facts
that would support a charge of discrimination have become apparent".
Bracken v. United States Postal Service, EEOC Request No. 05900065
(March 29, 1990).
A review of the record shows that appellant has not provided any
evidence to contradict the agency's findings that her last day of work
was May 23, 1997, and that she had been involved in the EEO process
five times before she sought EEO counseling on November 14, 1997.
The agency found that although appellant's last day of work had been
May 23, 1997, she did not seek EEO counseling until November 14, 1997,
even though the nature of the incidents raised in allegations (1) -
(3) was such that she should have suspected discrimination. Based on
the foregoing, we find that the agency's decision to dismiss allegations
(1) - (3) on the grounds of untimely EEO counselor contact was proper.
Finally, the record shows that on February 27, 1998, appellant received
the notice of the right to file a formal complaint. In allegation (4)
appellant claims that the next day, February 28, 1998, oil tankers started
following her and that she found an EPA pamphlet in her mail. Based on
the foregoing, we find that appellant did not raise this allegation
with the EEO counselor during the inquiry of her informal complaint
of discrimination but it is like or related to the counseled issues.
The Commission finds that it is proper to dismiss allegation (4) for
failure to state a claim because appellant has not shown how she suffered
a personal harm to the terms or conditions of her employment.
Accordingly, the agency's final decision dismissing appellant's complaint
on the basis of untimely EEO counselor contact and for failure to state
a claim, 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. �l6l4.604(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 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:
June 23, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations