01980706_r
05-11-2001
Stacey J. Gentile, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Stacey J. Gentile v. United States Postal Service
01980706
May 11, 2001
.
Stacey J. Gentile,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01980706
Agency No. 4C-164-0051-97
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision pertaining to her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. � 2000e et seq. and 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 June 27, 1997, complainant contacted the EEO office regarding claims
of discrimination based on sex and disability. Specifically, complainant
claimed that she was discriminated against when:
(1) on March 29, 1997, she was physically threatened and verbally
attacked by two Postal Supervisors; and,
(2) on April 25, 1997, she was issued a Notice of Removal, effective
May 30, 1997.
Informal efforts to resolve complainant's concerns were unsuccessful.
Subsequently, on August 13, 1997, complainant filed a formal complaint.
The agency issued a decision, on October 22, 1997, dismissing claim
(1) for untimely EEO Counselor contact. The agency determined that
complainant's June 27, 1997 contact, regarding a March 29, 1997 event
identified in claim (1), was beyond the forty-five day time limitation.
Claim (2) was accepted for investigation.
The regulation set forth at 29 C.F.R. � 1614.107(b) provides that where
an agency decided that some but not all of the claims in a complaint
should be dismissed, the agency shall notify the complainant of its
determination; however, this determination is not appealable until
final action is taken on the remainder of the complaint. Based on
correspondence from the agency, it appears that the accepted claim, claim
(2), was the subject of a recommended decision by an EEOC Administrative
Judge (AJ) issued on October 30, 1998, finding no discrimination.
The record does not reflect that complainant subsequently pursued an
appeal on this matter, thereby rendering the claim pending herein the
only viable matter. Therefore the Commission shall issue a decision on
claim (1), the remaining claim.
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.
Here, the record establishes that complainant contacted the EEO office
on June 27, 1997, regarding an incident that occurred on March 29,
1997. Because complainant's contact was beyond the forty-five day time
limitation, it is considered untimely. On appeal, complainant, through
her attorney, argues that she contacted �the employee assistance program
coordinator� the day after the incident. According to complainant,
following an interview with the coordinator and a final report by the
coordinator, complainant filed a formal complaint. Complainant asserts
that this contact was made �in an effort to comply with pre-complaint
formal procedures.� The record contains a threat assessment report
prepared by the named employee assistance program coordinator, dated
May 19, 1997. Therein, the coordinator noted that complainant first
met with her in April 1997. However, nothing in that report or in the
record reflects that the coordinator was connected with the EEO complaint
process, or that complainant contacted her with the intent to pursue
this process. We note that the Commission has consistently held that
utilization of internal agency procedures, union grievances, and other
remedial processes does not toll the time limit for contacting an EEO
Counselor. See Kramer v. U.S. Postal Service, EEOC Appeal No. 01954021
(October 5, 1995); Williams v. U.S. Postal Service, EEOC Request
No. 05910291(April 25, 1991). Therefore, we find that complainant has
not presented sufficient justification for tolling or extending the
time limit for contacting an EEO Counselor. Accordingly, the agency's
decision to dismiss claim (1) was proper and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 11, 2001
__________________
Date