01982767
03-05-1999
Loretta A. Howard, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Loretta A. Howard v. United States Postal Service
01982767
March 5, 1999
Loretta A. Howard, )
Appellant, )
)
v. ) Appeal No. 01982767
) Agency No. 4-D-250-0151-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
The Commission finds that the agency's January 12, 1998 decision
dismissing appellant's complaint on the grounds of untimely EEO counselor
contact, is proper pursuant to 29 C.F.R. �1614.107(b).
The record shows that appellant, a Postmaster, sought EEO counseling
on August 26, 1997, alleging that she had been discriminated against
on the bases of race (not specified),<1> physical disability (physical
pain, severe headaches, undue stress and insomnia) and mental disability
(occasional loss of memory, nightmares and depression) when: (1) on or
about September 1, 1990, employees of the Matewan, West Virginia Post
Office plotted and conspired against appellant; and, (2) on an unspecified
date, after suspending two employees for illegal activities, appellant
received threats and warnings against her life which caused appellant
to relocate and work at the Charleston, West Virginia Post Office.
The agency issued a final decision dismissing the complaint on the
grounds of untimely EEO counselor contact.<2> The agency found that
appellant had sought EEO counseling "approximately seven years after
the alleged discriminatory action began on or about September 1, 1990".
The agency also found that appellant had failed to show that she was
unaware of the time limit for EEO counselor contact because "exhibits
to file show that on March 21, 1991, all postmasters were forwarded an
EEO poster to be permanently posted on the Employee Bulletin Board.
As postmaster of the Matewan, WV post office, [appellant] would have
received the EEO poster. Furthermore, affidavit to file indicates that an
EEO poster with appropriate EEO counselor contact time frames was clearly
posted for the several months (dates unspecified) that [appellant] worked
at her new work site in the Charleston, WV district office. Furthermore,
the EEO Counselor's Inquiry Report indicates that an EEO poster was on
display at [appellant's] work place". On appeal, appellant contends that
"this is a continuing violation of [her] rights" because "to this day
[she has] to continue to watch over [her] back at all times".
The Commission applies a "reasonable suspicion" standard to the
triggering date for determining the timeliness of the contact with an
EEO counselor. Cochran v. United States Postal Service, EEOC Request
No. 05920399 (June 18, 1992). Under this standard, the time period
for contacting an EEO counselor is triggered when the complainant should
reasonably suspect discrimination, but before all the facts that would
support a charge of discrimination may have become apparent. Id.;
Paredes v. Nagle, 27 FEP Cases 1345 (D.D.C. 1982). Appellant contends
that the discrimination against her has been continuous. A review of
her allegations shows that she claims that the discrimination started
in September 1990 and that to this day she has to watch over her back.
Nevertheless, a review of the complaint as well as the nature of the
alleged actions in issue, persuades the Commission that appellant was
aware of the alleged discriminatory events at the time they took place.
However, she did not seek EEO counseling until August 26, 1997, over seven
years after the alleged discrimination took place, even though EEO posters
with the time limits for EEO counselor contact, were available in the
facilities where she worked as postmaster. Under these circumstances,
appellant should have sought EEO counseling within the prescribed time
limit and is unable to claim, successfully, a continuing violation.
Appellant failed to submit evidence sufficient to establish that she was
medically incapacitated and unable to contact the counselor in a timely
manner. The agency's decision dismissing the complaint on the grounds
of untimely EEO counselor 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. �l6l4.604(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 consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (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:
Mar 5, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 On appeal, appellant indicates that she is black.
2 After appellant raised the issue of her removal in her formal complaint,
the agency did not address said issue in the instant final decision.
The record shows that said issue was referred for processing to the
Capital District and appellant was issued a final interview for the
removal action with MSPB rights.