Gladys A. Montano Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency,

Equal Employment Opportunity CommissionJun 17, 1999
05970890 (E.E.O.C. Jun. 17, 1999)

05970890

06-17-1999

Gladys A. Montano Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency,


Gladys A. Montano v. United States Postal Service

05970890

June 17, 1999

Gladys A. Montano )

Appellant, )

)

v. ) Request No. 05970890

) Appeal No. 01966878

William J. Henderson, ) Agency No. 4H330164496

Postmaster General, )

United States Postal Service, )

Agency, )

)

DECISION ON REQUEST FOR RECONSIDERATION

INTRODUCTION

On July 7, 1997, appellant timely initiated a request to the

Equal Employment Opportunity Commission to reconsider the decision

in Gladys A. Montano v. Marvin T. Runyon, Jr., Postmaster General,

United States Postal Service, EEOC Appeal No. 01966878 (June 6, 1997),

which she received on June 11, 1997. EEOC regulations provide that the

Commission may, in its discretion, reconsider any previous decision.

29 C.F.R. �1614.407(a). The party requesting reconsideration must

submit written argument or evidence that tends to establish one or more

of the three criteria prescribed by 29 C.F.R. �1614.407(c): that new and

material evidence was available that was not available when the previous

decision was issued, 29 C.F.R. � 1614.407(c)(1); that the previous

decision involved an erroneous interpretation of law or regulation, or

material fact, or a misapplication of established policy, 29 C.F.R. �

1614.407(c)(2); or that the decision is of such exceptional nature as

to have substantial precedential effects, 29 C.F.R. � 1614.407(c)(3).

For the reasons set forth herein, the Commission grants appellant's

request.

ISSUE PRESENTED

Whether the agency correctly dismissed appellant's complaint for failure

to contact an EEO counselor in a timely manner.

BACKGROUND

The agency employed appellant as a window distribution clerk at its

facility in Hialeah, Florida. Effective May 6, 1995, she was terminated,

ostensibly for violating a "last chance" agreement that she signed on

July 1, 1993. On June 19, 1996, she contacted an EEO counselor with

allegations that she had been discriminated against on the bases of race

(White), sex, national origin (Honduras), and age (46), in connection

with her termination the year before. She informed the counselor that,

in the course of a conversation with the postmaster earlier that day,

she became aware of at least one black male employee who was fired after

violating a last chance agreement, but was rehired. In her initial

contact with the counselor and her formal complaint, to which the agency

assigned the number 4-H-330-1644-96, she identified June 19, 1996, as

the date of the incident. She stated in Complaint No. 4-H-330-1644-96:

I was terminated from my employment for violating a "last chance

settlement." The same situation occurred with a black male carrier who

was reinstated after violating his own last chance settlement agreement

by the same manager.

The agency issued its final decision in August 1996, dismissing Complaint

No. 4-H-330-1644-96, on the grounds that appellant failed to contact an

EEO counselor in a timely manner. The agency noted that appellant was

removed on May 6, 1995, but did not contact an EEO counselor until June

19, 1996, 410 days after the effective date of her removal.

In her appeal, appellant reiterated that she met with the Postmaster

on June 19, 1996, and that she became aware of the discrimination in

connection with her removal during the course of that conversation.

She maintained that the postmaster told her of at least two other

employees who violated last chance agreements, but were not disciplined

as harshly as she was. She reiterated that the postmaster told her that

she should contact an EEO counselor right away, and that she did so.

Nevertheless, the previous decision found that appellant's contact

with the counselor was untimely and affirmed the agency's dismissal of

Complaint No. 4-H-330-1644-96. It found that appellant should have had

reasonable suspicion of discrimination at the time of her removal in May

1995. In her request for reconsideration, appellant argues, in effect,

that the previous decision constitutes an erroneous interpretation of

material fact.

ANALYSIS AND FINDINGS

Commission regulations require complainants who believe that they have

been discriminated against to contact an EEO counselor within 45 days

of the alleged discriminatory incident. 29 C.F.R. � 1614.105(a)(1).

This time period is triggered as soon as the complainant reasonably

suspects discrimination. Peets v. United States Postal Service, EEOC

Request No. 05950725 (March 28, 1996). Throughout the processing of

her complaint, appellant maintained that she did not reasonably suspect

discrimination until her conversation with the postmaster on June 19,

1996. During this conversation, she learned that at least one employee

outside of her protected group who also violated a last chance agreement

was reinstated after being terminated. As soon as she became aware of

this alleged disparate treatment, she contacted a counselor.

In dismissing appellant's complaint for failure to timely contact an

EEO counselor, the burden is on the agency to show that appellant did

not initiate contact with an EEO counselor until after the expiration

of the 45-day time limit. Simmons v. Department of the Treasury, EEOC

Request No. 05970351 (February 26, 1999). In this case, the agency

maintains that appellant should have reasonably suspected discrimination

in May of 1995, when she was terminated. The agency has not, however,

presented any documents or statements tending to show that appellant

became aware of the other employee's situation before June 19, 1996.

We therefore find that it was the conversation between appellant and

the postmaster on June 19, 1996, rather than the May 1995 termination

itself, that should have triggered appellant's reasonable suspicion

of discrimination. Since appellant contacted an EEO counselor on the

same day that she began to reasonably suspect discrimination, we find

that her contact with an EEO counselor on June 19, 1996, was timely.

CONCLUSION

After a review of appellant's request for reconsideration, the

previous decision, and the entire record, the Commission finds that the

appellant's request meets the criteria of 29 C.F.R. �1614.407(c). It is

therefore the decision of the Commission to grant appellant's request.

The decision of the Commission in EEOC Appeal No. 01966878 affirming

the agency's dismissal of Complaint No. 4-H-330-1644-96 is reversed.

The agency's final decision dismissing Complaint No. 4-H-330-1644-96,

for untimely contact with an EEO counselor is reversed and the matter

remanded for processing in accordance with our order below. There is no

further right of administrative appeal from a decision of the Commission

on request for reconsideration.

ORDER (E1092)

The agency is ORDERED to process Complaint No. 4-H-330-1644-96 in

accordance with 29 C.F.R. �1614.108. The agency shall acknowledge to

the appellant that it has received the remanded allegation within thirty

(30) calendar days of the date that it receives this decision. The agency

shall issue to appellant a copy of the investigative file and also shall

notify appellant of the appropriate rights within one hundred fifty

(150) calendar days of the date that it receives this decision, unless

the matter is otherwise resolved prior to that time. If the appellant

requests a final decision without a hearing, the agency shall issue a

final decision within sixty (60) days of receipt of appellant's request.

A copy of the agency's letter of acknowledgment to appellant and a copy

of the notice that transmits the investigative file and notice of rights

must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503 (a). The appellant also has the right

to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,

the appellant has the right to file a civil action on the underlying

complaint in accordance with the paragraph below entitled "Right to File

A Civil Action." 29 C.F.R. �� 1614.408 and 1614.409. A civil action for

enforcement or a civil action on the underlying complaint is subject to

the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the

appellant files a civil action, the administrative processing of the

complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. �1614.410.

RIGHT TO FILE A CIVIL ACTION (R0993)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court. 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 to consult an attorney concerning the applicable time period in the

jurisdiction in which your action would be filed. In the alternative,

you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR

DAYS of the date you filed your complaint with the agency, or filed your

appeal with the Commission. 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.

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 17, 1999

_______________ ______________________________

Date Frances M. Hart

Executive Officer

Executive Secretariat