Cynthia Gallo, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 21, 2000
01985848 (E.E.O.C. Mar. 21, 2000)

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.