01a01117
04-19-2000
Dorothy D. Hatchett, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Dorothy D. Hatchett, )
Complainant, )
)
v. )
) Appeal No. 01A01117
William J. Henderson, ) Agency No. 4-D-230-0092-99
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) 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. and Section 501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1> The
Commission accepts the appeal in accordance with 64 Fed. Reg. 37,644,
37,659 (1999)(to be codified at 29 C.F.R. �1614.405).
On February 3, 1999, complainant contacted the EEO office regarding claims
of discrimination based on race, retaliation, physical disability, and
mental disability. Informal efforts to resolve complainant's concerns
were unsuccessful. Accordingly, complainant filed a complaint dated
June 4, 1999. Therein, complainant stated that on January 6, 1999,
she was made aware that agency actions were taken against her that
culminated in her constructive discharge from agency employment.
On October 18, 1999, the agency issued a FAD dismissing the complaint for
untimely counselor contact. The agency determined that complainant's
complaint was comprised of eighteen claims relating to a hostile work
environment, culminating in her separation from agency employment.
The first claim identified by the agency addressed the Postmaster's
plan to constructively discharge complainant, which resulted in her
resignation. The additional claims included, but were not limited to,
purported reprimands; humiliation by being forced to sit in the middle
of the floor; being forced to work in unsafe working conditions;
and being taunted by agency officials. The agency then determined that
complainant's EEO contact was approximately six years after the earliest
alleged incident and fourteen months after complainant resigned from
the agency on December 24, 1997. The FAD also dismissed the complaint
on the grounds that it raises the same claims that are pending before
or have been decided by the agency.
On appeal, complainant contends that the agency incorrectly framed her
complaint when it only referred to the dates of the alleged incidents.
Complainant argues that on January 6, 1999, she became aware that �the
hostile work environment evidenced by the 18 incidents, was deliberately
perpetrated by management, and resulted in [her] constructive discharge.�
According to complainant, her awareness was triggered by the �written
statement and testimony [by] one of the principals in this case.�
Complainant states that the written statement and testimony indicated
that agency management intentionally made her work situation intolerable
so as to force her out of her job.
Volume 64 Fed. Reg. 37,644, 37656 (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
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).
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.
The Commission initially notes that despite complainant's argument on
appeal, the agency properly defined the matters raised in her formal
complaint, including the issue of constructive discharge from agency
employment. Based on a review of the record, the Commission finds that
complainant should have reasonably suspected discrimination more than
forty-five days prior to her February 3, 1999 EEO Counselor contact.
The record reflects that some of the alleged incidents occurred more
than five years before complainant's contact. We find that the alleged
incidents, such as those regarding reprimands and denial of leave,
should have triggered complainant's suspicions of unlawful employment
discrimination. On appeal, complainant argues that she was not aware of
the discrimination until January 6, 1999, over a year after her December
1997 separation from agency employment. Complainant contends that in
January 1999, she reviewed a �written statement and the testimony
from one of the principals in her case� that manifested the agency
intent to force her out of her job. The Commission is not persuaded
by complainant's argument on appeal. Complainant had, or should have
had, a reasonable suspicion of unlawful employment discrimination at the
time the alleged incidents occurred, and not as late as January 6, 1999.
The Commission has found that, since the limitation period for contacting
an EEO Counselor is triggered by the reasonable suspicion standard,
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). Therefore, we find that the agency properly dismissed the
complaint for untimely counselor contact. Accordingly, the agency's
dismissal of the complaint was proper and is hereby AFFIRMED.
Because of our decision to affirm the dismissal of the complaint due to
untimely Counselor contact, we need not address the agency's alternative
grounds for dismissal.
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:
April 19, 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.