01993679
09-28-2000
Doris S. Melton, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Mid-Atlantic Area) Agency.
Doris S. Melton v. United States Postal Service
01993679
September 28, 2000
.
Doris S. Melton,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Mid-Atlantic Area)
Agency.
Appeal No. 01993679
Agency No. 4-D-280-0152-98
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely
EEO contact.<1>
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination be brought to the attention of the EEO Counselor within
45 days of the date of the matter alleged to be discriminatory or,
in the case of a personnel action, within 45 days of the effective
date of the action. EEOC Regulation 29 CFR 1614.105(a)(2) provides
that the Commission shall extend the 45-day time limit in paragraph
(a)(1) of this section when the individual shows that he or she was
not notified of the time limits and was not otherwise aware of them,
that he or she did not know and reasonably should not have known that
the discriminatory matter or personnel action occurred, that despite
due diligence he or she was prevented by circumstances beyond his or
her control from contacting the Counselor within the time limits, or
for other reasons considered sufficient by the agency or the Commission.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the 45-day limitation
period is triggered. See Ball v. U.S. Postal Service, 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.
In her complaint, the complainant alleged that she was unlawfully
discriminated against when on October 29, 1992, she was informed that she
was being assigned to a �hold down� vacant clerk position and informed
that she would not be converted to full-time status. The record
discloses, and it is not disputed, that the alleged discriminatory event
occurred in 1992, and the complainant did not contact an EEO Counselor
until June 22, 1998. The record also reveals, and the complainant does
not argue, that she was unaware of the time limits. The complainant
contends, however, that she was not aware that she was discriminated
against until June 19, 1998, when she encountered an October 27, 1992
letter from the Acting Manager of Human Resources to the Chesterfield
Postmaster which provided the Chesterfield Postmaster with authorization
to create a full-time clerk position for the Chesterfield Post Office.
After reviewing the entire record, the Commission concludes that the
complainant failed to present adequate justification for extending or
tolling the 45-day time limit. Almost six years elapsed between the
alleged discriminatory incident and complainant's Counselor contact.
At the latest, the complainant should have suspected discrimination by
1997, when she did not become a full-time regular employee. Therefore,
when the complainant contacted an EEO Counselor in June 1998, her contact
was untimely. As early as 1993, the complainant sought to be made full
time. In an April 26, 1993 letter from the complainant to the union,
she states that she was a �PTF� clerk and that she wanted to be made
full-time regular. The record also contains a June 18, 1998 letter from
the complainant to the union wherein she indicated that a year prior, she
had written to the union inquiring why she was not made full-time in 1993.
In her appeal, the complainant states that she had heard that all PTFs
were to be made regular by 1997 and that the Chesterfield Postmaster
told her that she would be made regular by 1997, either at Chesterfield
or somewhere else. The complainant was not made full-time regular.
The Commission has consistently held that complainants must act with
due diligence in the pursuit of their claims or the doctrine of laches
may be applied. O'Dell v. Department of Health and Human Services,
EEOC Request No. 05901130 (December 27, 1990). Waiting until one has
"supporting facts" or "proof" of discrimination before initiating
a complaint can result in untimely Counselor contact. See Bracken
v. U.S. Postal Service, EEOC Request No. 05900065 (March 29, 1990).
Accordingly, the agency's final decision dismissing complainant's
complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0800)
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 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 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 28, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.