01A41369_r
04-26-2004
Gail R. Slavin, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Gail R. Slavin v. United States Postal Service
01A41369
April 26, 2004
.
Gail R. Slavin,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A41369
Agency No. 4H-370-0251-03
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision, dated December 3, 2003, pertaining to 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.
The Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.
Complainant filed a formal complaint on September 9, 2003, claiming
that she was sexually harassed from December 7, 2001 to January 2003,
and assaulted by a Postmaster on January 20, 2003. The agency dismissed
the complaint on the grounds of untimely EEO Counselor contact.
According to the agency decision, complainant did not contact an
EEO Counselor after the alleged discriminatory incidents occurred.
The agency determined that complainant's attorney mailed a complaint
form on July 2, 2003, to the Office of General Counsel at Postal Service
Headquarters. The agency noted that the mis-directed correspondence was
sent approximately six months after the allegedly discriminatory actions
(which the agency determined ended in January 2003), and construed this
correspondence as complainant's initial EEO contact.
Further, the agency stated that notices are posted in the facility
where complainant is employed, notifying employees of the time limit for
contacting an EEO Counselor, and that there was a national mailing of
a guide regarding sexual harassment. Finally, the agency stated that
although complainant said she has been on workers' compensation / leave
without pay, and undergoing counseling, since the incident, there was
no evidence that she was so incapacitated that she was unable to make
timely contact.
On appeal, complainant, through her attorney, first argues that she
was incapacitated during the forty-five-day time limit and provides
an affidavit from her physician. Complainant also argues that the time
limits should be tolled because the agency's own actions were a factor
in her untimeliness.
According to complainant, on February 14, 2003, less than forty-five
days after the alleged sexual assault, complainant went to the Dade
County Sheriff's Department and met with a detective, as well as a Postal
Service Inspector's Office employee. Complainant states that during
this meeting, her mother asked the agency employee about complainant's
workers' compensation and sexual harassment claims. Complainant asserts
that the agency official informed her mother, in her presence, that there
was nothing else she needed to do. Complainant states that in late April
2003, she sought legal counsel regarding the sexual harassment claim.
Complainant further states that upon insistence by her attorney that
she contact the agency's EEO office regarding this matter, complainant
learned that the agency did not consider her to have yet pursued the
EEO complaint process. Complainant maintains that "[f]ollowing this
initial contact, a flurry of EEO activity [ensued]."
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 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.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
In the instant case, complainant was allegedly harassed from December
2001 through January 2003, and sexually assaulted on January 30, 2003.
Complainant argues that during a February 14, 2003 meeting with a Postal
Inspector, and the local sheriff's department, she was told that there
was nothing else she needed to do to perfect a sexual harassment claim.
She acknowledges that in "late April 2003" she learned that the agency
did not consider her to have filed a complaint. Thereafter, complainant
argues, that "she took immediate measures to protect her claim." However,
according to the record, a complaint form was not sent to the agency
until July 2, 2003. Construing this letter mailed on July 2, 2003,
as complainant's initial EEO Counselor contact, complainant waited
beyond the forty-five-day time limit. Moreover, assuming arguendo
that complainant first learned in late April 2003, that the agency
had not determined that she had yet pursued the EEO complaint process,
complainant's July 2, 2003 contact was more than forty-five days from
that date. Regarding complainant's claims that she was incapacitated and
prevented from meeting the time limitation, the record does not show that
complainant was incapacitated from the date of the event, on January 30,
2003, until forty-five days before her July 2, 2003 contact. Therefore,
we do not find that complainant has provided sufficient evidence for
tolling or extending the time limit for contacting an EEO counselor.
Accordingly, based on a review of the entire record, including arguments
not specifically addressed herein, the agency's decision is hereby
AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
April 26, 2004
__________________
Date