01985848
03-21-2000
Cynthia Gallo, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Cynthia Gallo v. United States Postal Service
01985848
March 21, 2000
Cynthia Gallo, )
Complainant, )
)
v. ) Appeal No. 01985848
William J. Henderson, ) Agency No. 4-G-700-0113-98
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On July 20, 1998, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) received by her on July 6, 1998,
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 Section 501 of 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 bases of religion (Baptist), sex (female), age (41), and physical
disability (job related injury) when:
On January 16, 1998, complainant's doctor visits were terminated and
complainant was informed that she had to seek further treatment from
her own doctor.
The agency dismissed complainant's complaint on the grounds of untimely
EEO Counselor contact. Specifically, the agency claimed that the Injury
Compensation Office (ICO) informed complainant in a December 12, 1997
letter that she was no longer authorized to use Operation 959 (OPN 959)
for limited duty work due to an on-the-job injury, but that she could
apply for limited duty if she had medical restrictions that were due to
a nonwork-related injury. The agency claimed that although complainant
became aware of the alleged discriminatory action on December 12, 1997,
she did not contact an EEO Counselor until February 5, 1998, ten days
after the applicable forty-five (45) day time limit.
On appeal, complainant states that she did not receive any notification
from the Office of Workers' Compensation (OWCP) that her case was closed.
Complainant concedes that she received the December 12, 1997 letter
terminating her use of OPN 959, but argues that this letter should not
have terminated her medical care. According to complainant, she contacted
the Clinic on January 16, 1998, to schedule an appointment regarding her
on-the-job injury of April 12, 1996, at which time she was informed that
her case had been closed by the agency's ICO and that she needed to seek
medical attention from her own physician.
A copy of the December 12, 1997 letter contained in the record, indicates
that complainant was informed by the agency's ICO that based on medical
documentation from the Clinic, her condition was no longer considered
related to her on-the-job injury of April 12, 1996. Consequently,
complainant was informed that she was no longer authorized to use OPN 959
for limited duty work. The record also contains a December 8, 1997 letter
from the Clinic to the agency's ICO Specialist describing the results of
complainant's appointment of that day, and indicating that complainant
was instructed to return to the clinic for a recheck in one month.
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).
In the present case, we find that the agency's decision to dismiss
complainant's complaint on the grounds of untimely EEO Counselor contact
was improper. The record indicates that complaint received the Injury
Compensation Office's December 12, 1997 letter informing her that medical
documentation revealed that her condition was no longer related to her
on-the-job injury and thus, she was no longer eligible for limited duty
work; however, as complainant indicates, this letter does not indicate
that she is no longer eligible for medical care. Complainant's contention
that she was unaware that she had to seek treatment from her own physician
until January 16, 1998, when she contacted the Clinic for an appointment,
appears reasonable particularly in view of the Clinic's letter of December
8, 1997, indicating that she was instructed to return to the Clinic around
that time. Therefore, complainant's EEO Counselor contact on February 5,
1998, was within the forty-five (45) day time limit from when she first
was aware of the alleged discriminatory matter.
Accordingly, the agency's decision to dismiss complainant's complaint
is REVERSED. The complaint is hereby REMANDED for further processing
in accordance with the Order below.
ORDER (E1199)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge to
the complainant that it has received the remanded claims within thirty
(30) calendar days of the date this decision becomes final. The agency
shall issue to complainant a copy of the investigative file and also shall
notify complainant of the appropriate rights within one hundred fifty
(150) calendar days of the date this decision becomes final, unless the
matter is otherwise resolved prior to that time. If the complainant
requests a final decision without a hearing, the agency shall issue a
final decision within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and an
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to the
complainant. If the agency does not comply with the Commission's order,
the complainant may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The complainant also has the right to file a
civil action to enforce compliance with the Commission's order prior
to or following an administrative petition for enforcement. See 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �
1614.503(g). Alternatively, the complainant has the right to file a
civil action on the underlying complaint in accordance with the paragraph
below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407
and 1614.408. A civil action for enforcement or a civil action on the
underlying complaint is subject to the deadline stated in 42 U.S.C. �
2000e-16(c)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R1199)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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:
March 21, 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
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.