01a02315
05-26-2000
Charlene Brooks, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Charlene Brooks, )
Complainant, )
)
)
v. ) Appeal No. 01A02315
) Agency No. 4-J-600-0256-99
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
The Commission finds that the agency's decision dated December 3,
1999, dismissing complainant's complaint due to untimely EEO contact
is proper pursuant to the regulation set forth at 64 Fed. Reg. 37,644,
37,656 (1999) (to be codified and hereinafter referred to as 29 C.F.R. �
1614.107(a)(2)).<1> In her complaint, complainant alleged that: (1) on
March 11, 1997, she received an Emergency Placement in Off-Duty Status;
and (2) on April 2, 1997, she received a Notice of Removal for improper
handling and delay of mail. However, complainant did not contact an
EEO Counselor with regard to her complaint until July 13, 1999, which
was beyond the 45-day time limit.
The record indicates that complainant filed a grievance with regard
to her removal. The record also indicates that on April 17, 1998,
an Arbitrator issued a decision upholding the agency's decision to
remove complainant and complainant was removed effective April 17,
1998. The Commission has held that the use of the negotiated grievance
procedure does not toll the time limits for contacting an EEO Counselor.
See Schermerhorn v. USPS, EEOC Request No. 05940729 (February 10, 1995).
On appeal, complainant contends that it was not until June 9, 1999, that
she found out that two white, male agency employees, who also delayed
mail, were still working at the agency. However, the EEO Counselor's
Report reflects that complainant indicated to her EEO Counselor that she
delayed contacting the Counselor with regard to the complaint because
she �had other people working on [her] case.� Thus, the Commission finds
that complainant's contentions on appeal are not persuasive. Furthermore,
after a review of the record, the Commission finds that complainant had or
should have had a reasonable suspicion of discrimination concerning her
complaint at the time of filing of her grievance, or the latest on April
17, 1998, when she was actually removed. See 29 C.F.R. � 1614.105(a)(2);
Ball v. United States Postal Service, EEOC Request No. 05880247 (July
6, 1988). Thus, the Commission finds that complainant fails to present
any justification to warrant an extension of the applicable time limit
for contacting an EEO Counselor. Accordingly, the agency's decision is
AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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).
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:
May 26, 2000
DATE
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
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.