01992853
09-26-2000
Anna Witowski, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes Area) Agency.
Anna Witowski v. United States Postal Service
01992583
September 26, 2000
.
Anna Witowski,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Great Lakes Area)
Agency.
Appeal No. 01992583
Agency No. 1-J-603-0035-99
DECISION
The complainant filed a timely appeal to this Commission from a January
19, 1999 final agency decision dismissing her complaint on the grounds
of untimely EEO Counselor contact.<1>
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination be brought to the attention of the EEO Counselor within
45 days of the date of the matter alleged to be discriminatory or, in
the case of a personnel action, within 45 days of the effective date of
the action.
In the present complaint, the complainant requested reassignment to
South Suburban Processing Center as full-time mailhandler. By letter
dated April 2, 1998, she was informed that she would be reassigned
as a part-time flexible (PTF) mailhandler and placed at the bottom
of the seniority list. The complainant contacted an EEO Counselor
and subsequently filed a complaint alleging that she was discriminated
against on the bases of her race (White) and physical disability (foot).
The record discloses that although the alleged discriminatory event
occurred in April 1998, the complainant did not initiate contact
with an EEO Counselor until November 9, 1998. The complainant does
not dispute that she did not contact an EEO Counselor until November
1998. The complainant also does not argue that she was unaware of the
requisite time limit. Accordingly, Counselor contact was beyond the
45-day limitation period and, therefore, untimely. The Commission
determines that the complainant should have suspected discrimination
more than 45 days prior to her Counselor contact. The record discloses
that the complainant did not contact an EEO Counselor until after her
union grievance regarding her seniority was denied in October 1998 at
the Step 3 level. The Commission has held that utilization of internal
agency procedures, including the grievance process, does not toll the time
limit for initiating EEO contact. 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). The complainant has failed
to provide justification sufficient to toll or extend the time period.
Accordingly, the agency's final decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0800)
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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
September 26, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1On 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.