01992898D
11-08-1999
Janet McKinney, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Janet McKinney, )
Appellant, )
)
v. ) Appeal No. 01992898
) Agency No. 4G-730-0005-99
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On February 23, 1999, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) issued on January 6, 1999, pertaining
to a complaint of unlawful employment discrimination in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e
et seq. and Section 501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. �791 et seq. The Commission accepts appellant's appeal in
accordance with EEOC No. 960, as amended.<1>
According to the record, appellant initiated contact with an EEO Counselor
on September 8, 1998. During the counseling period, appellant alleged
that on or about July 7, 1998 she first received notice that she was
being terminated for improper conduct. However, the record reflects,
that on May 31, 1998 appellant submitted a complaint to the Labor
Relations Board contesting the
allegations of fraud and improper conduct that prompted the agency to
issue the removal letter.
On November 10, 1998, Appellant filed a formal complaint, alleging that
she was the victim of unlawful employment discrimination on the basis of
race, gender and physical disability. Appellant's complaint was comprised
of the matter in which she underwent EEO Counseling, discussed above.
On January 6, 1999, the agency issued a final agency decision (FAD) by
both regular and return receipt certified mail dismissing appellant's
complaint for failure to initiate timely contact with an EEO Counselor.
According to the record, the certified copy of the FAD was returned
unclaimed. However, the decision sent by regular mail was not returned
to the agency. The agency found that the alleged discriminatory event
addressed in the complaint occurred on May 19, 1998 the date the removal
letter was issued and not July 7, 1998. The agency also found that
appellant did receive notice of the decision prior to July 7, 1998 and
in fact prior to May 31, 1998 because on that date, she wrote a letter
to the Labor Relations Board contesting the issue of improper conduct
that was the impetus behind the removal issued on May 19, 1998.
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 case at bar, the Commission will impute that appellant had at the
very least, a �reasonable suspicion� that she may have been the victim
of discrimination when she wrote her letter to the Labor Relations Board
contesting the allegations of fraud and improper conduct. Therefore, the
time in which to begin calculating the 45 day period in which to contact
an EEO Counselor pursuant to 29 C.F.R. �1614.105(a)(1) will be May 31,
1998. Clearly, since appellant initiated contact with an EEO Counselor
on September 8, 1998, she did so outside the 45 day period in which to
initiate contact. Furthermore, the record is void of any reason to extend
the 45 day period pursuant to 29 C.F.R. �1614.105(a)(2). Accordingly,
the agency's decision to dismiss appellant's complaint for failure to
initiate contact with an EEO Counselor was proper and 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. �1614.604(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 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:
November 8, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
1 Since the agency did not supply a copy of a certified mail
return receipt or any other material capable of establishing
the date appellant received the agency's final decision, the
Commission will presume that appellant's appeal was filed within
thirty (30) days of receipt of the agency's final decision. See,
29 C.F.R. �1614.402.