01992790
12-27-1999
Sheila D. Wade, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Sheila D. Wade v. United States Postal Service
01992790
December 27, 1999
Sheila D. Wade, )
Complainant, )
)
v. ) Appeal No. 01992790
) Agency No. 4-J-606-0265-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On February 20, 1999, the complainant filed a timely appeal with this
Commission from a final agency decision (FAD) dated January 21, 1999,
pertaining to her 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 � 501 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. � 791 et seq.<1> In her complaint, complainant
alleged that she was subjected to discrimination on the bases of race
(black), sex (female) and disability (physical) when effective July 18,
1997, she was removed from the U. S. Postal Service.
The record shows that the complainant initially contacted an EEO counselor
on May 12, 1998. The record further shows that the complainant filed
a grievance on her removal which an arbitrator denied on April 6, 1998.
The agency dismissed the complaint pursuant to 64 Fed. Reg. 37,644,
37,656 (1999) (to be codified and hereinafter referred to as 29 C.F.R. �
1614.107(a)(2)) , for failure to seek EEO counseling within the applicable
time limit.
In support of her appeal the complainant asserts that grievances are
totally controlled by the union not by her and that she was not aware of
EEO procedures until after the arbitration, because neither the agency,
nor the union informed her of her rights. The agency timely responded.
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 Ball v. U.S. Postal Service,
EEOC Request No. 05880247 (July 6, 1988). Thus, the limitations period
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
29 C.F.R. � 1614.105(a)(2) further provides 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.
It is well settled that constructive knowledge of the time limit
for contacting an EEO counselor will be imputed to a complainant
where the agency has fulfilled its statutory duty of posting notices
informing employees of their rights and obligations under Title VII.
See Thompson v. Department of the Army, EEOC Request No. 0510474
(September 12, 1991). In order to impute constructive knowledge to the
complainant, the agency may not rely on a generalized affirmation that
it posted EEO information; it must submit specific evidence that the
poster contained notice of the applicable time limits. See Pride v.
U.S. Postal Service, EEOC Request No. 05930134 (August 19, 1993).
In the instant case, the agency submitted a sworn affidavit by the Senior
EEO Complaint Processing Specialist, stating that a notice was posted at
the complainant's work site. The agency submitted a copy of the posted
notice which includes the name, telephone number and address of the EEO
counselor and the specific time limits and the necessity for contacting
an EEO counselor before filing a formal complaint. The agency record
also shows that the complainant has filed two previous EEO complaints,
one in 1995 and one in May 1998.
Given the circumstances of this case, we find that the complainant knew of
the 45-day limit for contacting an EEO counselor and yet she waited until
after her grievance was denied through arbitration to seek counseling.
Accordingly, we AFFIRM the agency's dismissal of the complainant's
complaint pursuant to 29 C.F.R. � 1614.107(a)(2) for failure to comply
with the applicable time limits.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
Dec. 27, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________ __________________________
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.