01986406_r
11-08-1999
Denise Reece-Jennings, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Denise Reece-Jennings, )
Appellant, )
)
v. ) Appeal No. 01986406
) Agency No. 4-J-480-1070-95
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On August 20, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD), dated June 16, 1998, pertaining
to her complaint of unlawful employment discrimination in violation
of �501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791
et seq., and Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. The Commission accepts appellant's appeal in
accordance with EEOC Order No. 960, as amended.<1>
In her complaint of May 24, 1996, appellant alleged that she was subjected
to discrimination on the bases of race (black) and physical disability
(shoulder) when:
On May 29, 1993, her route was adjusted and she was no longer able to
use a push cart;
On October 19, 1993, appellant was issued a 7-day suspension for
attendance deficiencies; and
On November 23, 1993, appellant was issued a 14-day suspension for
attendance deficiencies.
Following an investigation of these three allegations, appellant requested
a hearing before an Administrative Judge (AJ). During a prehearing
conference on March 26, 1998, appellant alleged that in addition to the
three allegations investigated, she was also challenging her removal.
Consequently, on April 8, 1998, the AJ remanded the case to the agency
to determine whether to process appellant's removal allegation and to
supplement the record accordingly. On June 16, 1998, the agency issued
the final decision at issue herein, dismissing appellant's allegation
that she was subjected to discrimination when:
On October 11, 1996, appellant was issued a notice of removal.
The agency found that appellant failed to contact an EEO Counselor in a
timely manner regarding allegation (4). Specifically, the agency noted
that appellant raised the issue of her removal with an EEO Counselor in
August 1997, however, appellant never informed the Counselor that her
removal was an issue for her complaint.
On appeal, appellant contends that when she received her letter of
removal, she raised the issue with the EEO officer. Also, appellant notes
her concern that the agency did not address her other three allegations
in its FAD.
In response, the agency provides an affidavit, of its Alternative Dispute
Resolution (ADR) Specialist who worked as an EEO Counselor from May
1995 through January 1998, stating that appellant did not raise the
removal issue until the investigative stage of the accepted issues.
The Specialist contends that he did not know of appellant's termination
"until she merely attached a notice of removal to her answer to
investigative questions in August of 1997." The Specialist contends,
under penalty of perjury, that he searched the EEO logs for six months
following the issuance of appellant's October 11, 1996 Notice of Removal,
but found no evidence that appellant had raised this issue with him or
any other EEO Counselor in that office. The agency also submits copies
of those logs supporting its position.
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 Ball v. USPS, EEOC Request
No. 05880247 (July 6, 1988). 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.
Appellant received a Notice of Removal on October 11, 1996. The record
indicates that appellant raised the issue of her removal with the EEO
Counselor in August 1997, however, it appears questionable whether she
exhibited an intent to pursue the issue as a claim. Even assuming that
appellant did raise the issue with the EEO Counselor in August 1997,
this contact was still beyond the 45-day time limit for initiating
EEO contact. Appellant failed to proffer any evidence or argument
to warrant an extension of the applicable time limit. Therefore, the
agency's dismissal of allegation (4) for untimely EEO contact was proper
and is AFFIRMED.<2>
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
November 8, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1The dismissal of a complaint or a
portion of a complaint may be appealed to the Commission within
thirty (30) calendar days of the date of the complainant's receipt
of the dismissal or final decision. See 29 C.F.R. �1614.402(a).
Because the agency failed on appeal to supply a copy of
the certified mail receipt or any other material capable of
establishing that date, the Commission presumes that the appeal was
filed within thirty (30) calendar days of the date of appellant's
receipt of the final decision.
2In response to appellant's concern that the agency did not address
all of her allegations, the record indicates that the June 16, 1998 FAD
only addressed allegation (4) and allegations (1) through (3) are still
pending in the process.