01993402_r
11-18-1999
Alicia Willis, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Alicia Willis, )
Complainant, )
)
v. ) Appeal No. 01993402
) Agency No. 4H300004899
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On March 22, 1999, complainant filed a timely appeal with this Commission
from a final agency decision pertaining to a 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.<1> In her complaint,
complainant alleged that she was subjected to discrimination on the
bases of race (black), sex (female), and in reprisal for prior EEO
activity when, beginning in September 1995, she repeatedly requested to
be transferred to the carrier craft (career letter carrier) and never
received an appropriate reason as to why her requests were not granted.
Pursuant to EEOC Regulations, the agency dismissed complainant's claim
for failure to initiate contact with an EEO Counselor in a timely manner.
Specifically, the agency determined that because complainant's November
12, 1998 initial EEO counselor contact was more than forty-five days from
the September 1995 date of her first transfer request, it was untimely.
We note that in the complainant's request for counseling and formal
complaint, she stated that she constantly checked on others being hired
into the carrier craft, and asserted that several less qualified white
persons had been hired to be career letter carriers �during the period
of time since I first applied for career letter carrier.� Moreover,
in the complainant's request for counseling form, she
specifically named six separate white employees hired into the carrier
craft during this period, stating dates of hire for four of them as
occurring from September 14, 1996 to September 12, 1998.
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 days of the date of
the matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five 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 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 present case, we concur with the agency's finding that complainant
failed to contact an EEO counselor in a timely manner. As is evident from
her request for counseling form and formal complaint, complainant had,
or should have had, a reasonable suspicion of discrimination beginning in
September 1996, when she learned that others were hired, triggering her
obligation to initiate EEO counseling within forty-five days. As the
record discloses that complainant did not seek EEO counseling until
more than forty-five days later, or within forty-five days of three
similar triggering events over the next two years, her EEO Counselor
contact was clearly untimely. Although complainant asserts that she
was repeatedly denied a transfer, the Commission has consistently held
that complainants must act with due diligence in the pursuit of their
claims or the doctrine of laches may be applied. O'Dell v. Department
of Health and Human Services, EEOC Request No. 05901130 (December 27,
1990). We therefore find that complainant's contention is insufficient
to justify her failure to act for over two years from the date she first
should have had a reasonable suspicion of discrimination. See Baldwin
County Welcome Center v. Brown, 466 U.S. 147, 151 (1984) (per curiam)
("One who fails to act diligently cannot invoke equitable principles to
excuse lack of diligence"); Rys v. U.S. Postal Service, 886 F.2d 443,
446 (1st Cir. 1989) ("to find succor in equity a Title VII plaintiff
must have diligently pursued her claim").
Accordingly, we find that the agency properly dismissed complainant's
complaint for untimely EEO Counselor contact, and the agency's final
decision is AFFIRMED.
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).
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:
November 18, 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:
_________________________
__________________________1On November 9, 1999, revised regulations
governing the EEOC's federal sector complaint process went into
effect. These regulation 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.