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