01A04018
12-08-2000
Bonnie A. Lovejoy v. United States Postal Service
01A04018
December 8, 2000
.
Bonnie A. Lovejoy,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A04018
Agency No. 4-D-250-0081-00
DECISION
On May 20, 2000, complainant filed a timely appeal with this Commission
from an agency decision pertaining to her complaint of unlawful employment
discrimination in violation of Section 501 of the Rehabilitation Act
of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.<1>
The Commission accepts the appeal in accordance with 29 C.F.R. �1614.405.
On March 27, 2000, complainant contacted the EEO office regarding claims
of discrimination based on disability. Specifically, complainant alleged
she was discriminated against when on July 14, 1999, after several
requests to be reinstated, she received a letter from the agency which
she believes fails to consider her disability. Informal efforts to
resolve complainant's concerns were unsuccessful. On April 21, 2000,
complainant filed a formal complaint.
On May 12, 2000, the agency issued a decision dismissing the complaint
for failure to timely contact an EEO Counselor. The agency determined
that complainant's EEO Counselor contact was approximately 255 days after
the allegedly discriminatory incident of July 14, 1999. According to
the agency, complainant failed to provide evidence that she was unaware
of the time limitations for contacting an EEO Counselor. Further, the
agency cited an affidavit indicating that posters, with the time limits,
were on display at complainant's work place during the period she was
employed by the agency.<2>
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 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.
The Commission determines that complainant's March 27, 2000 contact,
regarding a July 14, 1999 incident, was well beyond the forty-five day
time limitation. We note that on appeal, complainant argues that it was
not until March 25, 2000, when someone in her church mentioned that he
filed an EEO against the federal government, that she realized that she
could file a complaint. However, the agency has provided an affidavit
indicating that from 1985 until the fall of 1993, EEO posters were posted
on employee bulletin boards and in the employee break room. According to
the affiant, the posters notified employees of the limitation period for
timely contacting an EEO Counselor. We find, therefore, that complainant
had constructive knowledge of the EEO complaint process, as well as the
applicable time limits for contacting an EEO Counselor, during the period
she was an agency employee. See Santiago v. United States Postal Service,
EEOC Request No. 05950272 (July 6, 1995). Accordingly, the agency's
decision to dismiss the complaint was proper and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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
December 8, 2000
__________________
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.
2 In an Information for Precomplaint Counseling document, dated March
28, 2000, complainant indicated that she had been employed by the agency
from August 31, 1985 to March 11, 1992.