Vickie Clark, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionDec 30, 2003
01a35371 (E.E.O.C. Dec. 30, 2003)

01a35371

12-30-2003

Vickie Clark, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Vickie Clark v. United States Postal Service

01A35371

December 30, 2003

.

Vickie Clark,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A35371

Agency No. 1E-681-0151-03

DECISION

Complainant filed a timely appeal with this Commission from the final

agency decision dated August 12, 2003, dismissing 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.

Complainant initiated EEO Counselor contact on March 19, 2003.

Informal efforts to resolve her concerns were unsuccessful. In her

formal complaint, dated May 1, 2003, complainant alleged that she was

subjected to discrimination in reprisal for prior EEO activity.

In its final decision, the agency determined that complainant's complaint

was comprised of the following claims:

1. during the week of May 21, 2001, a supervisor attempted to issue

complainant a letter of warning for failure to follow instructions; and

2. on or about June 29, 2002, [complainant's] position of Training

Technician was abolished.

The agency dismissed claim (1) for failure to state a claim, pursuant to

29 C.F.R. � 1614.107(a)(1), and on the grounds of untimely EEO Counselor

contact, pursuant to 29 C.F.R. � 1614.107(a)(2). The agency dismissed

claim (2) for untimely EEO Counselor contact.

Complainant contends, on appeal through her representative, that �she

did contact [the EEO Counselor], within 45 days of the wrongful act and

he indicated he would provide the charge. She contacted him later as

well, and he indicated his records reflected a timely contact and that he

would make that part of the record. Since getting this final decision,

he has been contacted and he has been uncooperative.�<1>

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.

A review of the record indicates that complainant initiated EEO Counselor

contact on March 19, 2003. The record is devoid of any evidence

indicating that complainant initiated EEO Counselor contact, regarding

claims (1) and (2), prior to March 19, 2003. While complainant contends,

on appeal, that she initiated EEO Counselor contact in a timely manner,

she does not provide any dates or evidence supporting this assertion.

Furthermore, complainant does not provide adequate justification for

extending the time limits. Thus, we find complainant did not initiate

EEO Counselor contact for claims (1) and (2) in a timely manner.

Accordingly, the agency's decision dismissing complainant's complaint

is AFFIRMED.

Because we affirm the agency's dismissal for the reason stated herein, we

find it unnecessary to address the agency's alternative dismissal grounds.

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

DECEMBER 30, 2003

__________________

Date

1On appeal, complainant also submits a

copy of a March 21, 2003 settlement agreement that she reached with the

agency; however, complainant does not state her purpose for submitting

the agreement. If complainant believes there has been a breach of the

agreement, she is advised to notify the agency's EEO Director in writing

of the alleged noncompliance, pursuant to 29 C.F.R. � 1614.504(a).