01982191
03-16-1999
Linda A. Seth, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Linda A. Seth v. United States Postal Service
01982191
March 16, 1999
Linda A. Seth, )
Appellant, )
)
v. ) Appeal No. 01982191
) Agency No. 4-G-770-1309-96
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning his 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. �501 et seq. Appellant received the final
agency decision on December 31, 1997. The appeal was postmarked January
14, 1998. Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)),
and is accepted in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint on the grounds that she failed to contact an EEO Counselor in
a timely manner.
BACKGROUND
Appellant initiated contact with an EEO Counselor on March 30, 1996.
On June 9, 1996, appellant filed a formal EEO complaint wherein she
alleged that she had been discriminated against on the bases of her race
(caucasian), sex (female), physical disability (back & neck) and in
reprisal for her previous EEO activity when from January through April
1996, she was not allowed to bid on assignment vacancies.
The record reveals that in May 1993, the agency offered appellant a
limited duty permanent reassignment to a modified distribution clerk
position due to her physical limitations and in accordance with Article
XIII of the National Agreement. At that time, appellant's physical
limitations were no lifting, pushing or pulling over 20 pounds;
no prolonged standing; no prolonged sitting; no excessive bending;
intermittent squatting to one hour; and, intermittent climbing, kneeling,
and twisting to two hours. As a result of accepting the limited duty
reassignment, appellant elected not to use her seniority to bid on
other positions that contained descriptions contrary to her physical
limitations.
In January 1996, appellant completed a PS Form 1717 to qualify for a
vacancy announcement involving a distribution, window service, timekeeping
relief and uniform allowance clerk position. On February 5, 1996, the
agency notified appellant that she was ineligible to bid on the vacancy
because her physical limitations indicated that she could not handle
the position.
In its final decision dated September 30, 1996, the agency dismissed
appellant's complaint on the grounds that she failed to contact an EEO
Counselor in a timely manner. The agency determined that appellant's
EEO contact on March 30, 1996, was nine days after the expiration of
the 45-day limitation period.
In an appeal of that final agency decision, appellant argued that
she telephoned the EEO Office as soon as she became aware that the
reason she did not receive the position was her physical disability.
According to appellant, the agency told her she had to wait until she
received the proper forms before she could proceed. Appellant claimed
that she sent a letter to the EEO Office about 20 days after she called
the EEO Office because she had not received the forms.
In Linda A. Seth v. United States Postal Service, EEOC Appeal
No. 01971272, the Commission vacated the final agency decision and
remanded the complaint for a supplemental investigation. The Commission
determined that the agency failed to address appellant's explanation
regarding the delay in her EEO contact. The Commission noted that
appellant did not clearly identify any incidents which would fall
within the 45-day time limit even though she claimed that the agency
discriminated against her through April 1996.
As part of its supplemental investigation, the agency procured affidavits
from appellant and the EEO Counselor referenced by appellant. Appellant
stated in her affidavit that she was told by the EEO Counselor that the
necessary forms would be mailed to her. Appellant did not provide the
date of her telephone call to the EEO Office. The EEO Counselor stated
in her affidavit that she does not recall talking to appellant prior
to her initial request for counseling. According to the EEO Counselor,
when an individual calls the EEO Office for purposes of pursuing the EEO
process, proper procedure is to complete an item O-13 and insert it in
the individual's file to indicate date of contact. The EEO Counselor
stated that an item O-13 was not in appellant's file, thus indicating
that appellant did not call the EEO Office prior to her written request
for counseling. The EEO Counselor asserted that she also attempted
to have appellant clarify when she was told that she could not bid.
According to the EEO Counselor, appellant did not provide the requested
information. The EEO Counselor stated that the only position appellant
bid on was posted on January 23, 1996, and closed on January 30, 1996.
The EEO Counselor stated that appellant bid on the position on January 29,
1996, and she was notified by letter dated February 5, 1996, that unless
she provided documentation indicating that her limitations had changed,
she could not be awarded the position.
In its final decision dated December 22, 1997, the agency dismissed
appellant's complaint on the grounds that she failed to contact an EEO
Counselor in a timely manner. The agency noted that the EEO Counselor had
no knowledge of talking with appellant prior to being assigned the case.
The agency further noted that the EEO Counselor stated that there was
not an item O-13 in appellant's file indicating that appellant did not
make telephone contact with the EEO Office. The agency concluded that
appellant's EEO contact of March 30, 1996, was nine days after the
expiration of the 45-day limitation period.
On appeal, appellant requests that the telephone logs and records of
the EEO Office for January 1996 through April 1996 be examined.
ANALYSIS AND FINDINGS
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 45 days of the effective date of the action.
EEOC Regulation 29 C.F.R. �1614.105(a)(2) provides that the agency or the
Commission shall extend the 45-day time limit when the individual shows
that he or she was not notified of the time limits and was not otherwise
aware of them, that he or she did not know and reasonably should not have
known that the discriminatory matter or personnel action occurred, that
despite due diligence he or she was prevented by circumstances beyond his
or her control from contacting the counselor within the time limits, or
for other reasons considered sufficient by the agency or the Commission.
Appellant was informed by letter dated February 5, 1996, that she would
not receive the position upon which she had bid. Appellant claimed
that she wrote a letter on March 30, 1996, to the agency within 20
days of her initial telephone call to the EEO Office. Upon review
of the record, we find that appellant has not presented sufficient
evidence to establish that her contact with an EEO Counselor was timely.
Appellant did not indicate in her affidavit a specific date that she
called the EEO Office. The EEO Counselor stated that an item O-13 would
have been in appellant's file had she called the EEO Office for purposes
of pursuing the EEO process, but that appellant's file did not contain
an item O-13. We find that the supplemental investigation supports the
agency's assertion that appellant's EEO contact was after the expiration
of the 45-day limitation period. Accordingly, the agency's decision
to dismiss appellant's complaint on the grounds of untimely EEO contact
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)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. 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:
March 16, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations