01a52166
05-04-2005
Linda M. Finkenbinder, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Linda M. Finkenbinder v. United States Postal Service
01A52166
May 4, 2005
.
Linda M. Finkenbinder,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A52166
Agency No. 4G-752-0009-05
DECISION
Complainant timely initiated an appeal with the Commission from the
agency's decision, dismissing her complaint of unlawful employment
discrimination in violation of Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act) as amended, 29 U.S.C. � 791 et seq.
The Commission accepts the appeal in accordance to 29 C.F.R. � 1614.405.
In her complaint, complainant alleged that she was subjected to
discrimination on the basis of disability when:
On May 12, 2004, management failed to provide complainant with a safe
working environment;
On May 14, 2004, complainant's supervisor called her at home and informed
complainant that her time off would be changed to Leave Without Pay
(LWOP); and
Complainant was never offered light duty.
On December 21, 2004, the agency dismissed complainant's complaint for
failure to state a claim pursuant to 29 C.F.R. 1614.107(a)(1) and for
untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2).
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 day
limitation period is triggered. See Howard v. Department of 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 have not 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.
Additionally, the Supreme Court has held that a complainant alleging a
hostile work environment will not be time barred if all acts constituting
the claim are part of the same unlawful practice and at least one act
falls within the filing period. See National Railroad Passenger Corp. v
Morgan, 122 S. Ct. 2061 (June 10, 2002). The Court further held, however,
that �discrete discriminatory acts are not actionable if time barred,
even when they are related to acts alleged in timely filed charges.� Id.
Finally, the Court held that such untimely discrete acts may be used as
background evidence in support of a timely claim. Id.
In the case at hand, the record reveals that complainant first contacted
the EEO Counselor on October 4, 2004 regarding the events that occurred
on May 12 and 14, 2004. Complainant argues that in accordance with
Morgan, since at least one act contributing to the claim occurred within
the 45-day filing period, the entire time period of the hostile work
environment may be considered. We disagree with this conclusion and find
that allegations (1) through (3) all concern discrete incidents outside
the limitation period. We further note that complainant reasonably
suspected discrimination within the 45-day limitation period because
she stated in her complaint that the May 14, 2004 alleged incident
of discrimination �was the point that [she] first recognized that
[she] was being discriminated against for [her] physical and mental
disability.� Given that complainant was aware of discrimination on
this date, she failed to contact an EEO Counselor within the applicable
time limitations. Thus, the agency properly dismissed the complaint
for untimeliness. We therefore need not address the agency's second
rationale for dismissal, failure to state a claim.
On appeal, complainant has presented no persuasive arguments or evidence
warranting an extension of the time limit for initiating EEO Counselor
contact. Accordingly, the agency's decision dismissing complainant's
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
May 4, 2005
__________________
Date