01a00181
01-28-2000
Bernice L. Rodgers, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Great Lakes/Mid-West Areas), Agency.
Bernice L. Rodgers, )
Complainant, )
)
v. ) Appeal No. 01A00181
) Agency No.1J-608-0049-98
William J. Henderson, )
Postmaster General, )
United States Postal Service )
(Great Lakes/Mid-West Areas), )
Agency. )
____________________________________)
DECISION
On October 4, 1999, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) pertaining to 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
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq., and the Rehabilitation Act of 1973, as amended,
29 U.S.C. � 791, et seq.<1> In her complaint, complainant alleged that
she was subjected to discrimination on the basis of sex (female), age
(DOB: 5/3/56), and disability (stress), when, effective July 6, 1997,
she was terminated from employment. The appeal is accepted in accordance
with EEOC Order No. 960.001. For the following reasons, the Commission
AFFIRMS the agency's final decision.
The record reveals that on April 27, 1997, complainant was issued a notice
of removal, which became effective July 6, 1997. She contacted an EEO
counselor on April 27, 1998, alleging that the agency discriminated
against her as referenced above. On March 11,1999, complainant filed
a formal complaint of discrimination. Thereafter, on August 31, 1999,
the agency issued a final decision dismissing the complaint under 29
C.F.R. � 1614.107(b) for failure to timely contact an EEO counselor.
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 Ball v. United States Postal Service,
EEOC Request No. 05880247 (July 6, 1988). 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 he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission. 29 C.F.R. � 1614.105(a)(2).
In the instant case, a review of the EEO Counselor's Inquiry report
provided by the agency reveals that complainant initiated contact with
an EEO counselor on April 27, 1998, significantly more than 45 days
after the alleged discriminatory termination of July 6, 1997.
On appeal, complainant contends that she was unaware of the time frames
in which to file an EEO complaint as no one informed her of her right
to contact an EEO counselor. She contends that she was under stress
at the time, taking prescription medication, and thus, �not thinking
clearly.� She states that her union stewardess only informed her to
�wait on the union.�
The agency submitted in the complaint file an affidavit from the Manager,
EEO Complaints Processing. Therein, he avers that EEO posters were
prominently displayed at the facility in which complainant worked.
Specifically, he stated that the posters, which inform employees of
the right to contact an EEO Counselor and time limits for doing so,
are displayed at the employees entrance and workroom floor.
After review of the record, we find complainant failed to provide
sufficient persuasive evidence or argument why we should extend the
time requirements in this case. She failed to demonstrate why she
was so incapacitated that she was incapable of timely contacting an
EEO counselor. Accordingly, the Commission AFFIRMS the agency's final
decision.
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
January 28, 2000
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 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 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.