01985785
09-09-1999
Shelly A. Moen, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Shelly A. Moen v. United States Postal Service
01985785
September 9, 1999
Shelly A. Moen, )
Appellant, )
)
v. ) Appeal No. 01985785
) Agency No. 4E-800-0012-98
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 her complaint of unlawful employment discrimination
in violation of Section 501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. �791 et seq. The final decision was received by appellant on
June 20, 1998. The appeal was postmarked July 15, 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.
On January 16, 1998, appellant initiated contact with an EEO Counselor.
Informal efforts to resolve her concerns were unsuccessful.
On March 12, 1998, appellant filed a formal complaint, alleging that
she was the victim of unlawful employment discrimination on the basis
of disability.
On June 15, 1998, the agency issued a final decision. Therein, the
agency found that appellant's formal complaint was comprised of two
allegations that were identified in the following manner:
1. On January 12, 1998, appellant was denied a career appointment as
a part time flexible employee.
2. In June 1997, appellant was denied an appointment as a letter
carrier.
The agency accepted allegation 1 for investigation. The agency dismissed
allegation 2 for failure to initiate contact with an EEO Counselor in
a timely fashion.
On appeal, appellant argues without elaboration that she had been unaware
of the forty-five day limitation period for initiating timely contact
with an EEO Counselor, and that she pursued the EEO complaint process
as soon as she learned that it was available. Appellant also argues
that she was not aware that she "could file for a physical disability"
until January 1998. In support of her argument, appellant submits a
copy of a statement from a union official. Therein, the union official
states that she spoke with appellant in January 1998, and asked her if
she ever learned whey she was not accepted for a carrier position, and
that appellant informed her that she was not selected "because of her
back." The union official indicated that he informed appellant that
she could pursue the EEO complaint process under such circumstances,
though appellant had indicated that she assumed that the agency had the
right to deny her a position because of her back.
In response, the agency argues that posters are on display at the facility
where appellant is employed, apprizing employees of the limitation period
for timely contacting an EEO Counselor. The agency submits various
documents for the record, including a copy of a poster addressing the
forty-five day limitation period; a diagram indicating where the poster
is on display at the worksite; and an agency memorandum to supervisors,
instructing them to replace an existing EEO poster with an updated poster;
and containing a notation that the updated EEO poster was posted on
December 21, 1996.
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. USPS,
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.
Appellant argues that she was unaware of the forty-five day limitation
period for timely contacting an EEO Counselor. It is the Commission's
policy that constructive knowledge will be imputed to an employee when
an employer has fulfilled its obligation of informing employees of
their rights and obligations under Title VII. Thompson v. Department
of the Army, EEOC Request 05910474 (September 12, 1991). However, the
Commission has held that a generalized affirmation that an agency posted
EEO information, without specific evidence that the poster contained
notice of the time limits, is insufficient for constructive knowledge of
the time limits for EEO Counselor contact. Pride v. USPS, EEOC Request
No. 05930134 (August 19, 1993).
Here, the record indicates that the agency maintained a bulletin board
containing information concerning EEO rights and responsibilities,
including the applicable time limit. The Commission determines that the
notice posted in this case was sufficiently informative. Appellant is
deemed to have had constructive notice of her responsibility to seek EEO
counseling within forty-five days of the date of the incident addressed
in allegation 2.
Appellant also argues that she was unaware that she could pursue the
EEO complaint process on the basis of disability, until she was so
informed by a union official in January 1998. However, the Commission
has held that the time limit for contacting an EEO Counselor shall
not be extended "simply on the grounds that appellant did not know
that disability in general or that [a disability in particular] was
covered by the Rehabilitation Act." Moore v. Department of the Navy,
EEOC Appeal No. 01952942 (March 28, 1996).
Appellant failed to present adequate justification pursuant to 29
C.F.R. �1614.105(a)(2), for extending the limitation period beyond
forty-five days. Accordingly, the agency's decision to dismiss allegation
2 for failure to initiate contact with an EEO Counselor in a timely
fashion 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)
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:
Sept. 9, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations