Evelyn R. Ash, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 15, 2000
01981795 (E.E.O.C. Mar. 15, 2000)

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.