Eleanor McNerney, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 24, 2000
01993724 (E.E.O.C. May. 24, 2000)

01993724

05-24-2000

Eleanor McNerney, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Eleanor McNerney, )

Complainant, )

)

v. ) Appeal No. 01993724, 01993794

) Agency No. 4B-010-0084-98

William J. Henderson, ) 4B-010-0013-94

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION

Complainant, employed by the agency as an EEO Counselor/Investigator at

the time of the alleged discriminatory events, filed two formal complaints

on February 4, 1999, alleging discrimination on the bases of sex (female),

age (over 60), and mental disability (major depression, general anxiety)

when (1)on July 9, 1998, she learned that she was not selected to a

detailed position as an Ad-Hoc EEO Counselor/Investigator; (2) on November

14, 1997, she became unable to perform her counseling/investigating

duties because her supervisor refused to provide her the assistance

she requested; (3) on November 4, 1998, she became aware of a vacancy

announcement for a Senior EEO Complaints Processing Specialist (EAS-19)

even though she had been performing the duties of that position since

1992; and (4) on November 5, 1998, she learned that a younger Ad-Hoc

EEO Counselor/Investigator was receiving pay at the EAS-19 level for

performing the same duties that she had performed from 1992 to 1997 at the

EAS-17 level. The first two incidents were issues in the first complaint;

the last two were issues in the second. In its final agency decisions,

the agency dismissed the first complaint for untimely contact with an

EEO counselor and the second for failure to state a claim. Complainant

appealed both decisions, and both will be addressed herein.<1>

Untimely EEO Counselor Contact

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. EEOC Regulation 29 C.F.R. � 1614.105(a)(1) 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.

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.

Failure to State a Claim

An agency shall dismiss a complaint that fails to state a claim. 64

Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter cited as

29 C.F.R. � 1614.107(a)(1)). 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 22, 1994).

Based on a review of the record, this Commission finds that the agency

properly dismissed complainant's formal EEO complaints for untimely

contact with an EEO counselor and failure to state a claim. As such,

we discern no basis for disturbing the final agency decision.

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:

May 24, 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 Employment Opportunity Assistant

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.