01983546
06-14-1999
Colette M. Brown, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Colette M. Brown v. United States Postal Service
01983546
June 14, 1999
Colette M. Brown, )
Appellant, )
)
v. ) Appeal No. 01983546
) Agency No. 4-G-752-0020-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
The Commission finds that the agency's final decision dismissing
appellant's complaint on the basis that appellant failed to contact an EEO
counselor within the 45-day time limit provided by EEOC Regulations,<1>
is proper pursuant to 29 C.F.R. �1614.107(b).
A review of the record shows that appellant sought EEO counseling on
September 26, 1997, alleging that she had been discriminated against
on the basis of physical disability (Carpal Tunnel Syndrome) when:
(a) on April 6, 1989, she was worked outside her restrictions; and,
(b) on May 9, 1995, she received a notice of removal.
The record shows that appellant was issued a notice of removal which
provided that she would be removed from service effective June 10, 1995.
Appellant filed a grievance on May 23, 1995, alleging that the removal was
not for just cause. By decision dated September 30, 1995, appellant's
grievance was denied after the arbitrator found that her removal was
for just cause.
The agency issued a final decision dismissing the complaint on the grounds
of untimely EEO counselor contact. The agency found that appellant
"contacted the EEO counselor 3093 and 868 days, respectively, after the
incidents". On appeal, appellant contends that she filed a grievance.
The Commission has consistently held that complainants must act with
due diligence in the pursuit of their claims or the doctrine of laches
may be applied. O'Dell v. Department of Health and Human Services, EEOC
Request No. 05901130 (December 27, 1990). Moreover, we have specifically
held that internal efforts or appeals of an agency's adverse action and/or
the filing of a grievance do not toll the running of the time limit to
contact an EEO counselor. See Hosford v. Department of Veterans Affairs,
EEOC Request No. 05890038 (June 9, 1989).
In the present case, appellant was allegedly worked outside her
restrictions in 1989, and removed from service effective June 1995.
After filing a grievance in May 1995, the arbitrator found that the
removal had been for just cause and denied the grievance in September
1995. The record shows that appellant waited 8 years from the date
she was allegedly worked outside her restrictions, and 2 years after
her removal and the arbitrator's decision, to seek EEO counseling in
September 1997.
Appellant has failed to provide sufficient evidence to excuse the
fact that she sought EEO counseling with an 8-year and 2-year delay,
respectively. Based on the foregoing, we find that appellant failed to
act with due diligence regarding her claim.
Accordingly, the agency's decision dismissing the complaint 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 14, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 Before October 1, 1992, EEOC Regulations required that a complainant
seek EEO counseling within 30-days of the alleged discriminatory incident.
EEOC Regulation 29 C.F.R. Part 1613.