01981795
03-15-2000
Evelyn R. Ash, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Evelyn R. Ash v. United States Postal Service
01981795
March 15, 2000
Evelyn R. Ash, )
Complainant, )
)
v. )
) Appeal No. 01981795
William J. Henderson, ) Agency No. 4K-220-0143-97
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On December 31, 1997, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) pertaining to 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.<1> The Commission accepts the appeal in accordance with 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).
Complainant contacted the EEO office on July 30, 1997, regarding
claims of discrimination based on race, color, national origin, and
physical disability. Informal efforts to resolve complainant's concerns
were unsuccessful. On September 25, 1997, complainant filed a formal
complaint.
The agency framed complainant's claims as follows:
1) On April 2, 1997, the new bid position that complainant had been
awarded on March 27, 1997 was re-posted for bid after the Administrative
Supervisor advised complainant that she had failed to provide the required
medical documentation after only being given 72 hours to provide it;
2) Management failed to respond to complainant's letter dated May 10,
1997;
3) On December 11, 1996 or December 13, 1996, the Administrative
Supervisor told complainant to leave her office when attempting to
submit documentation from her physician so she could get paid injury
compensation;
4) On or about July 15, 1997, the Administrative Supervisor required
complainant to wait until 2:00 P.M. to get her paycheck, even though
other employees received their pay checks earlier; and,
5) Complainant was given a letter of demand dated March 19, 1997 for
a window credit that was over two years old and required it be paid in
less than two months which complainant responded to by completing a PS
Form 3239, Payroll Deduction Authorization on April 14, 1997.
The agency issued a FAD, dated November 26, 1997, dismissing the
complaint for untimely counselor contact and failure to state a claim.
Specifically, the FAD indicated that complainant's July 30, 1997
counselor contact was past the forty-five day time limitation with regard
to claims 1, 2, 3, and 5. The FAD also indicated that an EEO poster
was on display and that complainant had received a booklet titled "What
You Need to Know About EEO". The FAD dismissed Claim 4 for failure
to state a claim.
On appeal, complainant contends that she timely contacted the EEO
counselor with respect to claim 1. Specifically, complainant argues
that she became aware of the re-posting on April 2, 1997 and wrote to
the Manager of Customer Service; and that as of August 15, 1997 she had
not received a response, and therefore, "because the situation was still
under consideration by the agency" her July 30, 1997 contact should be
considered timely. Complainant also contends that she suffered harm
by the agency because she was denied a position which would have been
a reasonable accommodation to her medical condition.
Claims 1, 2, 3, and 5
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 instant case, the alleged events occurred on April 2, 1997
(claim 1), May 10, 1997 (claim 2), December 11 or 13, 1996 (claim 3),
and April 14, 1997 (claim 5). Complainant, however, did not contact
the EEO office until July 30, 1997, well beyond the forty-five day
time limit. Complainant contends, with respect to claim 1, that she
contacted the Manager of Customer Service on April 2, 1997 and was
awaiting a response. The Commission, however, has held that informal
efforts to resolve a dispute do not toll the running of the time
limitations period. See Hosford v. Department of Veterans Affairs,
EEOC Request No. 05890038 (June 9, 1989). Further, complainant does
not contend that she was unaware of the time limitations. Therefore,
we find that complainant has failed to present adequate justification to
warrant an extension of the time limit for contacting an EEO Counselor
concerning claims 1, 2, 3, and 5. Accordingly, the agency's dismissal
for untimely counselor contact was proper and is AFFIRMED.
Claim 4
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. � 1614.107(a)(1)) provides, in relevant part, that an
agency shall dismiss a complaint that fails to state a claim. 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).
Here, complainant contends that she suffered discrimination when she
allegedly had to wait until 2:00 p.m. to receive her paycheck, while other
employees received their paychecks earlier. She has failed to established
how the delay until 2:00 p.m. resulted in a harm or loss regarding a
term, condition, or privilege of her employment. Therefore, we find
that claim 4 does not render complainant an "aggrieved" individual.
The agency's dismissal of claim 4 was proper and is AFFIRMED.
Accordingly, the agency's decision to dismiss the complaint was proper
and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
March 15, 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 Equal Employment 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.