01984931
09-27-2000
Eddie Mae Timmons, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Eddie Mae Timmons v. United States Postal Service
01984931
September 27, 2000
.
Eddie Mae Timmons,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01984931
Agency Nos. 4H-350-1106-96, 4H-350-0080-98
DECISION
Complainant filed an appeal with this Commission from two agency
decisions, one dated October 20, 1997, and one dated May 4, 1998,
addressing her complaints of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. <1>
Agency Case No. 4H-350-1106-96
Complainant filed a formal complaint in Agency Case No. 4H-350-1106-96
on April 23, 1996. In her complaint, complainant alleged that she was
subjected to discrimination on the basis of race (Black) when:
On December 23, 1995, complainant's request for sick leave was denied.
Complainant's complaint was accepted by the agency for investigation.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge
or alternatively, to receive a final decision by the agency. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614, the agency issued a final decision on October 20, 1997.
In its final decision, the agency concluded that complainant had not
established a prima facie case of discrimination based on race.
A copy of the certified mail return receipt card reveals that the
agency decision was received at complainant's address of record on
October 25, 1997. A review of the decision reveals that the agency
properly advised complainant that she had thirty (30) calendar days after
receipt of its final decision to file her appeal with the Commission.
Therefore, in order to be considered timely, complainant had to file
her appeal no later than Monday, November 24, 1997. The record shows
that complainant's appeal was postmarked June 5, 1998, and received by
the Commission on June 11, 1998. Accordingly, complainant's June 5,
1998 appeal of Agency Case No. 4H-350-1106-96 is hereby DISMISSED.
Agency Case No. 4H-350-0080-98
Complainant filed a formal complaint in Agency Case No. 4H-350-0080-98
on April 3, 1998. In her complaint, complainant alleged that she was
subjected to discrimination on the bases of race (Black) and color when:
On October 22, 1997, complainant's sick leave was changed to LWOP and a
PS Form 2240 was processed and complainant had to reimburse the agency
for the sick leave.
The agency dismissed complainant's complaint pursuant to the regulation
set forth at 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor
contact. Specifically, the agency noted that the alleged discriminatory
incident occurred on October 22, 1997, however, complainant did not
contact an EEO Counselor until December 18, 1998, 422 days after the
incident.
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.
In the present case, we find that the agency's decision to dismiss
complainant's complaint for untimely EEO Counselor contact was proper.
The record reveals that on October 22, 1997, the agency processed a
PS Form 2240 to change complainant's sick leave to LWOP. Complainant
did not contact an EEO Counselor until December 18, 1998. On appeal,
complainant offers no excuse for her delay in contacting a counselor.
Thus, we find complainant's December 18, 1998 counselor contact untimely.
Accordingly, the agency's decision to dismiss complainant's complaint
(4H-350-0080-98) was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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 27, 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.