Barbara A. Adams, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 1, 1999
01985564 (E.E.O.C. Nov. 1, 1999)

01985564

11-01-1999

Barbara A. Adams, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Barbara A. Adams v. United States Postal Service

01985564

November 1, 1999

Barbara A. Adams, )

Appellant, )

)

v. ) Appeal No. 01985564

) Agency No. 4-H-390-0078-98

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 Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. �2000e et seq. The final agency decision was issued on

June 10, 1998. The appeal was postmarked July 8, 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.

ISSUE PRESENTED

The issue on appeal is whether the agency properly dismissed appellant's

complaint on the grounds of untimely EEO contact.

BACKGROUND

Appellant initiated contact with an EEO Counselor on January 16, 1998.

On May 4, 1998, appellant filed a formal EEO complaint wherein she alleged

that she had been discriminated against on the bases of her race (black)

and in reprisal for her previous EEO activity when on September 4, 1997,

she was denied a transfer to the Madison, Mississippi Post Office due

to there being no vacancies at that facility. Appellant alleged that a

white employee was transferred to the Madison, Mississippi facility on

January 3, 1998.

In its final decision, the agency dismissed appellant's complaint on the

grounds of untimely EEO contact. The agency determined that appellant's

contact of an EEO Counselor on January 16, 1998, was more than 45

days after the alleged discrimination occurred on September 4, 1997.

The agency stated that waiting until one has supporting facts or proof

of discrimination before initiating a complaint is not justification to

extend the 45-day time limit.

On appeal, appellant contends that her EEO contact was timely. Appellant

indicates that she promptly filed her complaint after she learned of a

white employee's transfer to the Madison facility on January 3, 1998.

According to appellant, there is a pattern of racial discrimination

which can be seen by the hiring for the positions for which she applied

at the Madison Post Office. Appellant indicates that white individuals

have been selected to fill vacancies for which she applied in May 1996,

on June 7, 1997, on January 3, 1998, and in April 1998.

ANALYSIS AND FINDINGS

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 45 days of the effective date of the action.

EEOC Regulation 29 C.F.R. �1614.105(a)(2) provides that the agency or the

Commission shall extend the 45-day time limit when the individual shows

that he or she was not notified of the time limits and was not otherwise

aware of them, that he or she did not know and reasonably should not have

known that the discriminatory matter or personnel action occurred, that

despite due diligence he or she was prevented by circumstances beyond his

or her control from contacting the counselor within the time limits, or

for other reasons considered sufficient by the agency or the Commission.

The Commission has adopted a "reasonable suspicion" standard (as opposed

to a "supportive facts" standard) to determine when the limitation

period was triggered. See Ball v. USPS, EEOC Request No. 05880247 (July

6, 1988). The time period is triggered as soon as a complainant suspects

discrimination, and the complainant may not wait until all supporting

facts have become apparent. Peets v. United States Postal Service,

EEOC Request No. 05950725 (March 28, 1996).

The record reveals that appellant was denied a transfer to the Madison,

Mississippi Post Office on September 4, 1997. Appellant contacted an

EEO Counselor on January 16, 1998. On appeal, appellant indicates that

she was not selected for two prior positions at the Madison Post Office

for which white individuals were selected. Appellant does not claim

that she was unaware of the alleged discrimination until the selection

in January 1998; since there were two prior selections of which she

purportedly was aware. Consequently, we find that appellant failed to

present adequate justification to warrant an extension of the 45-day

time limit. Accordingly, the agency's dismissal of appellant's complaint

on the grounds of untimely EEO contact 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. 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 (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 1, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations