01A44470_r
09-28-2004
Jean M. Gamban, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jean M. Gamban v. United States Postal Service
01A44470
September 28, 2004
.
Jean M. Gamban,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A44470
Agency No. 4C-280-0096-04
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision (FAD) dated May 25, 2004, dismissing 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.
On March 2, 2004, complainant initiated contact with the EEO office
claiming that she was the victim of unlawful employment discrimination
on the bases of race and sex. Informal efforts to resolve complainant's
concerns were unsuccessful.
In her formal complaint, filed on March 24, 2004, complainant alleged
that she was subjected to discrimination when on February 24, 2004,
she was notified that as a result of a PS Form 50 effective June 28,
2003, her pay was reduced.
In its May 25, 2004 FAD, the agency dismissed the instant complaint on
the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. �
1614.107(a)(2). The agency determined that complainant's initial
EEO Counselor contact occurred on March 2, 2004, which it found to be
beyond the 45-day limitation period. The agency further determined
that a review of the record reveals that complainant was made aware
of the reduction in her pay much earlier than February 24, 2004, the
date of alleged discriminatory event as claimed by complainant in the
formal complaint. The agency determined that on December 30, 2003,
the personnel office issued a revised Form 50 via Eagan, Minnesota
with a copy sent to complainant's address of record. The agency
determined that complainant was aware as early as January 16, 2004,
through receipt of her paycheck, that her pay for Pay Period 2, Fiscal
Year 2004 (December 27, 2003 through January 9, 2004) had been reduced.
The agency also noted that EEO posters describing the 45-day limitation
period were on display at complainant's work facility.
On appeal, complainant contends that she received the PS Form 50 on
January 8, 2004, because she was out of the country for the month of
December 2003. Complainant further states that she contacted Human
Resources �and went through different channels, to question the decrease
in my salary and why I am not getting paid overtime just like the other
204Bs (just like myself), so to resolve the matter without filing EEO.�
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.
The Commission determines that the agency's dismissal on the grounds
of untimely EEO Counselor contact was proper. The record reveals that
complainant stated that on February 24, 2004, she was notified that that
as a result of a PS Form 50 effective June 28, 2003, her pay was reduced.
However, we note that on appeal, complainant states that she received the
PS Form 50 on January 8, 2004, and that she wanted to try resolving her
concerns with management without going through the EEO complaint process.
Complainant should have had a reasonable suspicion of discrimination by
January 8, 2004. The record reveals that complainant did not initiate
EEO Counselor contact until March 2, 2004. Therefore, complainant's
contact with the EEO Counselor was beyond the 45-day time period for
timely EEO Counselor contact. Complainant has not provided adequate
justification to extend the time period.
Accordingly, the agency's decision dismissing the instant complaint on
the grounds of untimely EEO Counselor contact was proper and is 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
September 28, 2004
__________________
Date