Christine Regalado, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 11, 2000
01992860 (E.E.O.C. Jan. 11, 2000)

01992860

01-11-2000

Christine Regalado, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Christine Regalado, )

Complainant, )

)

v. ) Appeal No. 01992860

) Agency No. 4-J-604-0031-99

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

______________________________)

DECISION

We find that the agency's January 22, 1999 decision dismissing the

complaint on the grounds of untimely EEO counselor contact is proper

pursuant to the provisions of 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>

The record shows that by letter dated April 2, 1998, Complainant was

advised that if she was reassigned to the South Suburban Processing and

Distribution Center, she would be reassigned as a Part Time Flexible

(PTF) and go to the bottom of the seniority list. On May 5, 1998,

Complainant filed a grievance. On July 13, 1998, a step 2 decision was

issued denying Complainant's grievance. On November 17, 1998, a step

3 decision was issued once again denying Complainant's grievance.

On November 9, 1998, Complainant sought EEO counseling claiming that

she had been discriminated against on the bases of race (White), and

physical disability (Varicose veins) when she received a step 3 decision

in October 1998, denying her seniority. Efforts to resolve Complainant's

concerns were unsuccessful and subsequently, she filed a formal complaint

of discrimination on the bases of race and reprisal.

The agency issued a final decision dismissing the complaint on the grounds

of untimely EEO counselor contact after finding that Complainant had

sought EEO counseling beyond the 45-day time limit after her grievance

had been denied.

The Commission applies a "reasonable suspicion" standard to the

triggering date for determining the timeliness of the contact with an

EEO counselor. Cochran v. United States Postal Service, EEOC Request

No. 05920399 (June 18, 1992). Under this standard, the time period

for contacting an EEO counselor is triggered when the complainant should

reasonably suspect discrimination, but before all the facts that would

support a charge of discrimination may have become apparent. Id.;

Paredes v. Nagle, 27 FEP Cases 1345 (D.D.C. 1982). Based on the record,

we find that complainant suspected or should have reasonably suspected

discrimination on April 2, 1998, when she was advised by the agency about

her loss of seniority. Accordingly, she should have sought EEO counseling

within the 45-day time limit provided by EEOC Regulations. Instead, the

record reflects that on May 5, 1998, she filed a grievance. Moreover,

the record shows that she did not seek EEO counseling until November 1998,

after her grievance was denied. We have previously held that internal

appeals or informal efforts or the filing of a grievance to challenge

an agency's adverse action do not toll the running of the time limit to

contact an EEO counselor. See Hosford v. Department of Veterans Affairs,

EEOC Request No. 05890038 (June 9, 1989). Accordingly, the complaint

was properly dismissed on the basis of untimely EEO counselor contact.

Based on the foregoing, the final agency decision is AFFIRMED.

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:

Jan. 11, 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:

___________ __________________________________

DATE EQUAL EMPLOYMENT ASSISTANT

1 On 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.