Faith K. Conrad, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 8, 1999
01994473 (E.E.O.C. Nov. 8, 1999)

01994473

11-08-1999

Faith K. Conrad, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Faith K. Conrad v. United States Postal Service

01994473

November 8, 1999

Faith K. Conrad, )

Appellant, )

)

v. )

) Appeal No. 01994473

William J. Henderson, ) Agency No. 4E-970-0051-99

Postmaster General, )

United States Postal Service, )

Agency. )

______________________________)

DECISION

On May 8, 1999, appellant filed a timely appeal with this Commission

from a final agency decision (FAD), dated April 22, 1999, dismissing

three allegations from her complaint for untimely counselor contact.

The Commission accepts the appeal in accordance with EEOC Order No. 960,

as amended.

On February 19, 1999, appellant contacted the EEO office regarding

allegations of discrimination based on race, religion, sex, age, and

retaliation. Informal efforts to resolve appellant's concerns were

unsuccessful. Accordingly, on April 3, 1999, appellant filed a formal

complaint.

The agency defined the allegations as follows:

On October 24, 1998, appellant was forced to transfer;

On October 17, 1998, appellant was promised a non-existent position in

the Scio Post Office;

On December 5, 1998, appellant was promised a hardship transfer;

On January 28, 1999, was denied an Elgin Post Office Position; and,

On March 25, 1999, appellant was mandated to return to the Scio Post

Office.

The agency issued a FAD dismissing allegations 1, 2, and 3 for untimely

counselor contact, pursuant to 29 C.F.R. �1614.107(b). Specifically,

the FAD stated that appellant's contact was 73 days (allegation 1),

80 days (allegation 2), and 31 days (allegation 3) after the expiration

of the forty-five day time limitation. The agency also noted that EEO

posters were on display, and therefore appellant knew or should have

known about the time restrictions. The agency accepted allegations 4

and 5 for investigation.

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 Ball v. USPS, 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.

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, appellant contends on appeal that she was not

aware of the discrimination until January 28, 1999. On that date,

appellant argues, she learned that she had been lied to and would not

be assisted as promised. We find, however, with respect to allegations

1 and 2, that appellant suspected or should have reasonably suspected

discrimination more than forty-five days before her counselor contact.

The record reveals that appellant knew in October 1998 that the transfer

(allegation 1) had gone through. Appellant explained that on October 10,

1998 she informed the agency that she did not want the transfer, but that

on October 17, 1998 she was told that the transfer paperwork had already

been submitted. Regarding the Scio Post Office position (allegation

2), appellant stated that in November 1998 her hours were reduced and

she realized that she would be getting even fewer hours in the future.

Therefore, appellant knew or should have known in November 1998 that she

would not get the position she had allegedly been promised. Accordingly,

the agency's decision to dismiss allegations 1 and 2 is AFFIRMED.

In allegation 3, appellant contends that on December 5, 1998 she was

promised a hardship transfer. Based on a review of the record, appellant

learned on January 28, 1999 that the agency official would not provide

the promised assistance. We find that this allegation to be timely.

Appellant is not alleging she was harmed when the promise was made in

December 1998; but rather, when it was broken on January 28, 1999. Prior

to January 28, 1999, appellant had no reason to suspect discrimination.

Therefore, we find that allegation 3 is timely. The agency's decision

to dismiss allegation 3 is REVERSED.

Accordingly, the agency's decision dismissing allegations 1 and 2 is

AFFIRMED. The agency's decision dismissing allegation 3 is REVERSED.

Allegation 3 is REMANDED to the agency for further processing in

accordance with this decision and the Order below.

ORDER (E1092)

The agency is ORDERED to process the remanded allegation in accordance

with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant

that it has received the remanded allegation within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue to

appellant a copy of the investigative file and also shall notify appellant

of the appropriate rights within one hundred fifty (150) calendar days

of the date this decision becomes final, unless the matter is otherwise

resolved prior to that time. If the appellant requests a final decision

without a hearing, the agency shall issue a final decision within sixty

(60) days of receipt of appellant's request.

A copy of the agency's letter of acknowledgment to appellant and a copy

of the notice that transmits the investigative file and notice of rights

must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action.

The report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503(a). The appellant also has the right

to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. ��1614.408, 1614.409, and 1614.503(g). Alternatively,

the appellant has the right to file a civil action on the underlying

complaint in accordance with the paragraph below entitled "Right to File

A Civil Action." 29 C.F.R. ��1614.408 and 1614.409. A civil action for

enforcement or a civil action on the underlying complaint is subject to

the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the

appellant files a civil action, the administrative processing of the

complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. �1614.410.

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 (T0993)

This decision affirms the agency's final decision in part, but it also

requires the agency to continue its administrative processing of a

portion of your complaint. You have the right to file a civil action

in an appropriate United States District Court on both that portion of

your complaint which the Commission has affirmed AND that portion of the

complaint which has been remanded for continued administrative processing.

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. 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 (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:

11/08/1999

___________________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations