Eve M. Alexander, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Midwest Region), Agency.

Equal Employment Opportunity CommissionSep 9, 1999
01985161 (E.E.O.C. Sep. 9, 1999)

01985161

09-09-1999

Eve M. Alexander, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Midwest Region), Agency.


Eve M. Alexander, )

Appellant, )

)

v. ) Appeal No. 01985161

) Agency No. 1IG32003098

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

(Great Lakes/Midwest Region), )

Agency. )

______________________________)

DECISION

Appellant filed an appeal with this Commission from a final decision of

the agency concerning 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. The appeal was timely filed

and is accepted in accordance with EEOC Order No. 960, as amended.<1>

On February 27, 1998, appellant initiated contact with an EEO Counselor.

Informal efforts to resolve her concerns were unsuccessful.<2> Appellant

filed a formal complaint on March 12, 1998, alleging that she was the

victim of unlawful employment discrimination on the bases of mental

disability (unspecified), race (Black), sex (female) and reprisal

(prior EEO activity) when, on October 31, 1997, she received a Notice

of Removal: Separation for Disability, effective December 6, 1997.

The agency issued a final decision on May 14, 1998. Therein, it dismissed

appellant's complaint under 29 C.F.R. � 1614.105(a)(1) for failure to

initiate contact with an EEO Counselor within the required forty-five

(45) day time period. The agency noted that the Notice of Removal was

effective as of December 6, 1997, but that appellant did not initiate

counseling until February 27, 1998.

It is unclear what appellant is arguing on appeal. She notes that she

filed a grievance on or about November 8, 1997, regarding the Notice of

Removal. The record reveals that on February 24, 1998, this grievance was

denied at Step 2. Appellant then contacted a EEO Counselor on February

27, 1998.

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

of discrimination 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 Ball v. United States 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 the case at hand, on October 31, 1997, appellant received the notice

of removal which became effective on December 6, 1997. The fact that

appellant filed a union grievance concerning this removal prior to

it becoming effective, indicates that she should have been and was

reasonably suspicious of discrimination by December 6, 1997. Thus,

the time limit for contacting an EEO Counselor was January 20, 1998.

On appeal, appellant seems to be explaining her delay by referring

to the grievance which she filed on or around November 8, 1997, and

which was denied at Step 2 on February 24, 1998. Appellant notes that

she then initiated EEO counseling on February 27, 1998.<3> However,

Commission precedent holds that the use of the negotiated grievance

procedure does not toll the time limit for contacting an EEO Counselor.

Schermerhorn v. United States Postal Service, EEOC Request No. 05940729

(February 10, 1995). Thus, appellant should have contacted an EEO

Counselor by January 20, 1998.

Accordingly, the agency's dismissal of appellant's complaint for failure

to comply with the applicable time requirement was proper and is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. In the alternative, you may file a

civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. Filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1092)

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:

Sept. 9, 1999

DATE Carlton M. Hadden, Acting Director,

Office of Federal OperationsFOR OFO INTERNAL CIRCULATION ONLY

FOR PROCEDURAL CASES

TO: CARLTON M. HADDEN, ACTING DIRECTOR

OFFICE OF FEDERAL OPERATIONS

APPEAL NUMBER:

01985161

AGENCY NUMBER:

1IG32003098

(APPROVED) (DATE)

REQUEST NUMBER:

HEARING NUMBER:

THE ATTACHED DECISION IS RECOMMENDED FOR APPROVAL:

TITLE

NAMES

INITIAL

DATE REVIEWED

(ATTORNEY):

Kerry E. Leibig

June 23, 1999

(SUPERVISOR:

Marjorie Borders

(DIVISION DIRECTOR):

1.) (APPELLANT(S)

Eve M. Alexander

2.) (AGENCY)

United States Postal Service

3.) (DECISION)

Affirmed

4.) (STATUTE(S)

Title VII, Rehabilitation Act

5.) (BASIS(ES)

RB, HM, GF, OR

6.) (ISSUE(S)

D2

7.) (TYPIST/DATE/DISK)

KL0/ June 23, 1999

SPELL CHECK:

YES

(PLEASE CHECK ALL APPLICABLE CODES)

PROCEDURAL CODES

LETTER CLOSURE CODES

X 3K - PROCEDURAL DECISION

? 3N - APPEAL DENIED/DISMISSED

? 3P - ADVERSE INFERENCE RAISED

X 4H - OFO AFFIRMED FAD

? 3M - OFO REVERSED AND REMANDED

? 4J - OFO MODIFIED FAD

? 4Q - COMPLIANCE

REQUIRED

? 3B - FAD RESCINDED

? 3C - DUPLICATE DOCKET NUMBER

? 3D - WITHDRAWAL

? 3E - COMPLAINT SETTLED

? 3G - OTHER LETTER CLOSURE

[REVISED AS OF 4/21/98]

1 The dismissal of a complaint or a portion of a complaint may be appealed

to the Commission within thirty (30) calendar days of the date of the

complainant's receipt of the dismissal or final decision. See 29 C.F.R. �

1614.402(a). Because the agency failed on appeal to supply a copy of the

certified mail receipt or any other material capable of establishing that

date, the Commission presumes that the appeal was filed within thirty (30)

calendar days of the date of appellant's receipt of the final decision.

2 The Counselor's report contained references to the fact that

appellant's initial application for disability retirement was disapproved

by the Office of Personnel Management, but that in a letter dated March

26, 1998, approval was granted. As no further or related information

was provided, we are unable to ascertain how this bears on appellant's

current situation. However, this information does not effect the outcome

of appellant's appeal and will therefore not be addressed further.

3 Appellant writes that she filed her complaint on February 27, 1998,

but the record indicates that this was the date of initial contact with

an EEO Counselor.