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.