01995125
05-19-2000
Judy Ciarpella, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Judy Ciarpella, )
Complainant, )
)
v. ) Appeal No. 01995125
) Agency No. 4-K-210-0043-99
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On June 9, 1999, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) pertaining to her 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
the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791, et seq.<1>
We accept the appeal pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified at 29 C.F.R. � 1614.405).
On November 20, 1998, complainant contacted the EEO office regarding
her claim of discrimination based on sex, disability, and reprisal.
Complainant contends that after her return to work following foot
surgery, on September 21, 1998, the agency placed her in a limited duty
assignment (clerk), but changed her schedule regarding her days off.
Informal efforts to resolve complainant's concerns were unsuccessful.
Accordingly, on April 5, 1998, complainant filed a formal complaint
against the agency.
The agency issued a FAD, dated May 14, 1999, dismissing the complaint
for untimely counselor contact. The FAD indicated that complainant's
November 20, 1998 counselor contact was beyond the 45 day time limitation,
noting that complainant informed the counselor that September 21, 1998,
was the date the discriminatory incident. The FAD further indicated
that there was no evidence that complainant was unaware of this time
requirement, attaching a sworn affidavit that an EEO poster with this
information was posted in complainant's work area. The FAD also found
that complainant failed to proffer any reason to justify an extension.
On appeal, complainant argues that she was unaware that her schedule
change was discriminatory until October 17, 1998, when she learned she
was still a �regular letter carrier� despite her limited duty assignment;
and that because of this status, she was entitled to retain her usual
days off, or, alternatively, to be given a rotating days off schedule
like the other letter carriers. Complainant argues that her EEO contact
was therefore timely, and that the agency's dismissal was improper.
Volume 64 Fed. Reg. 37,644, 37656 (1999) (to be codified and hereinafter
referred to as EEOC
Regulation 29 C.F.R. � 1614.105(a)(1)) requires that complaints of
discrimination should be brought to the attention of the EEO 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 he 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.
Review of the formal complaint reflects that complainant acknowledged
that she suspected the agency's motives in changing her schedule when a
co-worker returned from an injury, apparently around the same time as she
returned from an injury, in September 1998, but that the co-worker was
allowed to retain his former schedule while in �restricted� duty status.
Complainant further elaborated that she: �knew management was retaliating
against me because they did not give me my regular non-scheduled days
off when I returned back from my second foot surgery.� Moreover, as
noted in the FAD, the EEO counselor's report indicates that complainant
identified September 21, 1998, the day she returned to work, as the date
the discrimination occurred. Despite complainant's contention to the
contrary on appeal, we determine that complainant had, or should have
had, reasonable suspicion of unlawful employment discrimination when she
returned to work on September 21, 1998, when she first learned that her
schedule was changed under the limited duty assignment. Therefore, we
find that complainant's EEO contact on November 20, 1998, was beyond the
45-day time limit, and was therefore untimely. Accordingly, the agency's
DISMISSAL of the instant complaint was proper and the FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
May 19, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.