01A44419_r
10-26-2004
Judy Holtzclaw, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Judy Holtzclaw v. United States Postal Service
01A44419
October 26, 2004
.
Judy Holtzclaw,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A44419
Agency No. 1F-946-0032-04
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated May 21, 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. , Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. , and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The agency defined complainant's complaint as alleging that complainant
was subjected to discrimination on the bases of race (Hispanic), national
origin (Hispanic), sex (female), disability, age (D.O.B. 11/26/51)
and reprisal for prior EEO activity, when :
Complainant was issued a Letter of Warning by Supervisor A, dated
September 7, 2001, charging her with failure to follow instructions.
On March 14, 2003, complainant was assigned to the Video Coding Unit
although she rejected the job offer.
Complainant's request to return to the Registry Unit in August 2003,
was denied.
Complainant has not challenged the agency's framing of the complaint.
The agency dismissed the complaint pursuant to 29. C.F.R. �1614.107(a)(2)
for untimely EEO Counselor contact. The agency indicated that a review of
the record shows that complainant contacted an EEO Counselor on February
10, 2004. The agency concluded that since complainant has engaged in
prior EEO activity she should have suspected discrimination long before
she actually contacted an EEO Counselor.
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.
Upon review the Commission finds that the agency properly dismissed the
complaint for untimely EEO Counselor contact. A review of the record
shows that at the earliest, complainant contacted an EEO Counselor on
February 10, 2004, which is beyond the 45-day time limit. Regarding
allegations 1 (Letter of Warning) and 2 (assignment to the Video
Coding unit), the Commission finds that these are separate and discrete
acts which should have caused complainant to suspect discrimination.
Complainant's failure to contact an EEO Counselor within 45-days renders
these allegations untimely.
Regarding allegation 3, complainant submitted a letter dated February 20,
2004, indicating that in August 2003, she requested permission to return
to the Registry unit and that request was denied. The time limitation to
contact an EEO Counselor was triggered once complainant learned by letter
dated August 26, 2003, that her request was denied and that she was to
continue in her current Limited Duty Assignment. Complainant's failure
to contact an EEO Counselor within 45-days of the agency's denial of her
request to return to the Registry unit renders this allegation untimely.
Accordingly, the agency decision dismissing the complaint 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
October 26, 2004
__________________
Date