01976092
01-12-1999
Benigna C. Breshears, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Benigna C. Breshears v. United States Postal Service
01976092
January 12, 1999
Benigna C. Breshears, )
Appellant, )
) Appeal No. 01976092
v. ) Agency No. 4-I-640-0096-97
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
On August 2, 1997, appellant filed a timely appeal of a June 19, 1997
final agency decision, received by her on July 3, 1997. The agency
dismissed her complaint for failure to contact an EEO Counselor in a
timely manner.
The final agency decision framed the allegation of appellant's April
29, 1997 complaint as whether appellant, a bulk mail technician, was
discriminated against on the basis of race (Mexican) when she became aware
in January 1995, that she was not paid at the higher supervisory level
when she performed supervisory duties, while Black females were being
paid at the supervisory level when they had to supervise. In dismissing
the complaint, the agency noted that because appellant did not contact an
EEO Counselor until March 19, 1997, although she knew in January 1995,
that she was being discriminated against, her contact was beyond the
45-day time period and, therefore, untimely.
On appeal, appellant asserts that although in 1995, she was aware that
Black females were compensated for performing supervisory duties at
higher pay, she believed that the duties that she was forced to perform
were part of her job as a bulk mail technician. Appellant asserts that
she only learned that she did not have to perform the supervisory duties
in May 1997, when she received an accurate job description for a bulk
mail technician and it did not indicate that she also had to perform
supervisory duties. On appeal, appellant also states that she "always
believed" that she was being treated unfairly.
In her Information for Precomplaint Counseling, appellant alleged that
for two and a half years she was "forced" to perform supervisory duties
on Saturdays without receiving supervisory pay and that she was told that
she had to perform those duties because there were not enough employees
to require a supervisor.
In an April 30, 1997 Memorandum, appellant stated that she waited until
1997, to initiate Counselor contact because she believed her supervisor's
statement that she could not be paid at a supervisory level because
the crew she supervised on Saturdays was too small. Appellant also
stated that when the crew was reduced from eight to four employees and
a supervisor was brought in on March 8, 1997, it "became obvious" to
her that she was being discriminated against.
In a May 21, 1997 Memorandum to the EEO Counselor, appellant stated that
since 1995, she was aware that Black females were paid supervisory pay
when they had to perform supervisory functions. Appellant also stated
in her Memorandum that she discussed this concern with her supervisor,
Person A. Appellant indicated that in response to her concerns, Person A
gave her a photocopy of a bulk mail technician's responsibilities which,
among other things, included references to shifting the workloads of
other employees. Person A allegedly informed appellant that shifting
workloads made supervision on Saturdays appellant's responsibility because
of the number of employees. Appellant further stated in the May 21,
1997 Memorandum that a week prior, she learned that the photocopy that
Person A had given her was not the true job description for a bulk mail
technician but a "local" memorandum that was obsolete and which was for
a non-existent, best qualified position. Appellant also stated that
she was now in possession of a bulk mail technician job description and
the description did not include the type of supervisory duties she was
forced to perform.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that an aggrieved
person initiate contact with an 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.
EEOC Regulation 29 C.F.R. �1614.105(a)(2) permits the time period to be
extended under certain circumstances and 29 C.F.R. �1614.604(c) provides
that the time limits in Part 1614 are subject to waiver, estoppel and
equitable tolling. The Commission has adopted a "reasonable suspicion"
standard (as opposed to a "supportive facts" standard) to determine
when the 45-day limitation period is triggered. See Ball v. U.S. Postal
Service, EEOC Request No. 05880247 (July 6, 1988). Thus, the limitation
period is not triggered until a complainant should reasonably suspect
discrimination, but before all the facts that would support a charge of
discrimination have become apparent. When a complainant has some reason
to support the belief that prohibited discrimination has occurred,
contact with a Counselor must occur. Waiting until one has proof of
discrimination before initiating a complaint can result in untimely
contact. See Bracken v. U.S. Postal Service, EEOC Request No. 05900065
(March 29, 1990).
As an initial matter, we note that it is not disputed that appellant
initiated EEO contact on March 19, 1997. Appellant also does not
dispute that she was aware of the time limit. In addition, appellant
herself admitted in her May 21, 1997 Memorandum that she suspected
discrimination in 1995. Accordingly, we find that appellant's March
19, 1997 contact was untimely. We do not find persuasive appellant's
explanations for her delayed contact in her April 30, 1997 and May 21,
1997 memoranda sufficient justification to extend the time limit.
Once appellant suspected that she was being discriminated against,
she was required to act with due diligence in pursuit of her claim.
Consistent with our discussion, the agency's dismissal of the complaint
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:
Jan. 12, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations