01a43917
09-15-2004
Mary Kidwell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Mary Kidwell v. United States Postal Service
01A43917
September 15, 2004
.
Mary Kidwell,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A43917
Agency No. 1J-461-0010-04
DECISION
Complainant filed an appeal with this Commission from a final
agency decision, dated April 12, 2004, regarding 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 with 29
C.F.R. � 1614.405.
On December 11, 2003, complainant initiated contact with an agency EEO
office. Complainant claimed that she was discriminated against when
during a November 1, 2002 meeting she was denied a certified interpreter.
Informal efforts to resolve complainant's concerns were unsuccessful.
On February 18, 2004, complainant filed a formal complaint based on
disability.
On April 12, 2004, the agency issued a final decision dismissing the
instant complaint on the grounds of untimely EEO Counselor contact.
The agency reasoned that complainant's contact was beyond the forty-five
day time limitation, and she had constructive knowledge of the time
limits since EEO posters were on display.
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.
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 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.
In the instant case, complainant contacted the EEO office in December
2003, regarding an event that occurred in November 2002<1>. Therefore,
the Commission agrees that complainant's contact is well beyond the
forty-five day time limit. Although complainant does not provide any
reason on appeal for her delayed contact, the EEO Counselor's report
states that she was asked why she failed to contact the counselor in
November 2002. According to the report, complainant stated that she did
not see the EEO poster, but indicated that she had previous EEO experience
and was aware of the EEO complaint process. Further, she stated that
she contacted the union for assistance, without receiving any response.
Her husband purportedly advised her not to wait any longer and to contact
the agency's EEO office. The Commission has held that the use of the
grievance process or other internal appeal process does not toll the time
limit for contacting an EEO Counselor. See Speed v. United States Postal
Service, EEOC Request No. 05921093 (June 24, 1993). Since complainant
has failed to provide sufficient justification for extending or tolling
the time limit, we find that the agency's dismissal was proper.
Accordingly, the agency's decision 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
September 15, 2004
__________________
Date
1 The Commission notes that while the final
agency decision cites February 5, 2004 as the date of initial EEO contact,
the EEO Counselor's Report refers to the earlier December 2003 date.
This disparity in dates does not affect our ultimate disposition of
this case.