01986875_r
10-14-1999
Joanne L. Ventura, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Joanne L. Ventura, )
Appellant, )
)
v. ) Appeal No. 01986875
) Agency No. 1B-145-0022-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On September 19, 1998, appellant filed a timely appeal with this
Commission from a final agency decision (FAD) received by her on
August 22, 1998, pertaining to her complaint of unlawful employment
discrimination in violation of Section 501 of the Rehabilitation Act of
1973, as amended, 29 U.S.C. �791 et seq. In her complaint, appellant
alleged that she was subjected to discrimination on the basis of physical
disability (lumbar ligamentous strain) when:
Appellant was denied reasonable accommodation thereby resulting in her
Separation Disability effective March 8, 1997;
On March 24, 1997, and August 29, 1997, the agency submitted information
to the Office of Personnel Management (OPM) controverting appellant's
Application for Disability Retirement;
In a reconsideration decision dated July 8, 1997, OPM denied appellant's
Application for Disability Retirement;
In appellant's Merit Systems Protection Board (MSPB) hearing held on
October 7, 1997, the agency's Labor Relations Specialist testified that
he saw a way to get appellant off the employment roster and not have
to give her any money; and
On April 2, 1998, the MSPB affirmed OPM's denial of appellant's
Application for Disability Retirement.
The agency dismissed allegations (1) through (4) pursuant to EEOC
Regulation 29 C.F.R. �1614.107(b), for failure to initiate contact
with an EEO Counselor in a timely manner. The agency also dismissed
allegation (5), and, alternatively, allegations (2) through (4),
pursuant to 29 C.F.R. �1614.107(a), for failure to state a claim.
Specifically, the agency determined that because appellant's May 15,
1998 initial EEO Counselor contact occurred more than forty-five (45)
days from the dates of alleged discrimination identified in allegations
(1) through (4), it was untimely. Additionally, the agency determined
that appellant was not aggrieved as a result of allegations (2) through
(5) because the incidents identified therein represented collateral
attacks on actions taken in other forums.
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, it is clear that the actions identified in
allegations (1) through (4) occurred more than forty-five (45)
days from appellant's May 15, 1998 initial EEO Counselor contact.
Appellant provided no justification sufficient to extend the applicable
limitation period. Additionally, we note that the use of other
dispute mechanisms does not toll the time limit for contacting an EEO
Counselor. Schermerhorn v. USPS, EEOC Request No. 05940729 (February
10, 1995)(finding that the use of a negotiated grievance procedure does
not toll the limitation period for initiating EEO Counselor contact).
Based on the foregoing, we find that the agency properly dismissed
allegations (1) through (4) for untimely EEO Counselor contact.<1>
EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that
an agency shall dismiss a complaint, or portion thereof, that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �1614.103;
�1614.106(a). The Commission's federal sector case precedent has long
defined an "aggrieved employee" as one who suffers a present harm or loss
with respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
In allegation (5), appellant alleged that she was subjected to
discrimination when on April 2, 1998, the MSPB affirmed OPM's denial of
appellant's Application for Disability Retirement. The Commission finds
that this allegation represents a collateral attack on the MSPB process.
The Commission has held that an employee cannot use the EEO complaint
process to lodge a collateral attack on another proceeding. Kleinman v.
USPS, EEOC Request No. 05940585 (September 22, 1994); Lingad v.
USPS, EEOC Request No. 05930106 (June 24, 1993). The proper forum for
appellant to have raised her challenges to actions which occurred during
the MSPB proceeding was at that proceeding itself. It is inappropriate to
now attempt to use the EEO process to collaterally attack actions which
occurred during the MSPB process. Consequently, we find that allegation
(5) was properly dismissed for failure to state a claim.
Accordingly, the agency's final decision dismissing allegations (1)
through (5) is AFFIRMED for the reasons set forth herein.
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:
October 14, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
1Since we are affirming the agency's dismissal of allegations (2)
through (4) on the grounds of untimely EEO Counselor contact, we
will not address the agency's alternative grounds for dismissal,
i.e., that they failed to state a claim.