01994501
07-27-2000
Davola Sutton, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Davola Sutton v. United States Postal Service
01994501
July 27, 2000
Davola Sutton, )
Complainant, )
)
v. ) Appeal No. 01994501
) Agency No. 1C-191-0202-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal with this Commission from an agency's
decision dated April 14, 1999 dismissing 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.<1> In her complaint,
complainant alleged that she was subjected to discrimination on the
bases of race (Black) and sex (female) when:
in November 1997, she was notified that the 1996 Economic Value Added
(EVA) was withheld because of disciplinary action she received;
in April 1998, she was notified that her EVA was withheld and in June
1998, she became aware that White males with similar unresolved issues
were granted an EVA; and
in August 1998, she became aware that information supplied by a manager
was not true and was inconsistent with Postal Service procedures.
The agency dismissed claims (1) and (2) of complainant's complaint
pursuant to EEOC Regulation 29 C.F.R. � 1614.105(a)(1) for untimely
EEO Counselor contact. The agency dismissed claim (3) of the instant
complaint for failure to state a claim pursuant to 64 Fed. Reg. 37,644,
37, 656 (1999)(to be codified and hereinafter cited as 29 C.F.R. �
1614.107(a)(1)).
Specifically, with respect to claims (1) and (2) the agency found
that complainant's June 23, 1998 counselor contact was beyond the
applicable time period for seeking EEO counseling. The agency found
also that complainant had not demonstrated that she was unaware of the
time limits for seeking counseling, nor did she provide any explanation
for her delay in seeking counseling. Regarding claim (3), the agency
found that complainant had not been harmed by the alleged incident and
was not an aggrieved employee within the meaning of EEOC regulations.
The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999) (to be
codified and hereinafter referred to as EEOC Regulation 29 C.F.R. �
1614.105(a)(1)) requires that complaints of discrimination should be
brought to the attention of the EEO 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.
Complainant contacted an EEO Counselor on June 23, 1998 regarding benefits
which were withheld in 1996 and in April of 1998. The record indicates
that complainant's claims of discrimination occurred more than 45 days
before her initial contact of an EEO Counselor. In the instant matter,
complainant has not indicated that she was unaware of the time limitations
for seeking counseling, nor has she suggested that she was prevented for
any reason from seeking EEO counseling regarding claims (1) and (2).
On appeal, no persuasive evidence or arguments have been presented
to warrant an extension of the time limit for initiating EEO contact.
We note that in claim (2), complainant asserts that sometime in June 1998,
she learned that a similarly situated White male employee received the
benefits she was denied in April of 1998. The Commission has consistently
held that the time limit for contacting an EEO Counselor begins to run
when the complainant possess a �reasonable suspicion� of discrimination,
and not when he or she has discovered all the facts necessary to support
a finding of discrimination. See Lehner v. Tennessee Valley Authority,
EEOC Request No. 05910597 (August 1, 1991); Bracken v. United States
Postal Service, EEOC Request No. 05900065 (March 29, 1990). Moreover,
we find that in the instant matter, complainant's alleged discovery of a
comparison employee is not sufficient justification to extend her time
for seeking EEO counseling. The agency's decision dismissing claims
(1) and (2) for untimely Counselor contact is hereby AFFIRMED for the
reasons set forth herein.
The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999)(to
be codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(1))
provides, in relevant part, that an agency shall dismiss a complaint
that fails to state a claim. An agency shall accept a complaint from
any aggrieved employee or applicant for employment who believes that he
or she has been discriminated against by that agency because of race,
color, religion, sex, national origin, age or disabling condition.
29 C.F.R. �� 1614.103, .106(a). The Commission's federal sector case
precedent has long defined an "aggrieved employee" as one who suffers a
present harm or loss with respect to a term, condition, or privilege of
employment for which there is a remedy. Diaz v. Department of the Air
Force, EEOC Request No. 05931049 (April 21, 1994).
In claim (3), complainant alleges that in August of 1998 she became aware
that her manager had provided information about her which was untrue and
which was inconsistent with Postal Service procedures. Complainant fails,
however, to demonstrate how she was harmed with respect to a term,
condition, or privilege of her employment by the incident described
in claim (3) of the instant complaint. Because complainant has not
shown that she was an aggrieved employee within the meaning of EEOC
Regulations, we find that the agency's dismissal of claim (3) was proper.
The agency's decision dismissing claim (3) for failure to state a claim
is hereby AFFIRMED for the reasons set forth herein.
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:
July 27, 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.