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.