01981459
01-12-1999
Gay L. Chrystal, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Gay L. Chrystal v. United States Postal Service
01981459
January 12, 1999
Gay L. Chrystal, )
Appellant, )
)
v. ) Appeal No. 01981459
) Agency No. 1-G-711-0015-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
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 the Rehabilitation Act of 1973, as amended,
29 U.S.C. �791 et seq. The final agency decision was received by
appellant on November 12, 1997. The appeal was postmarked December 8,
1997. Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)),
and is accepted in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint for untimely contact with an Equal Employment Opportunity
(EEO) counselor.
BACKGROUND
Appellant contacted an EEO counselor on July 2, 1997, regarding
allegations of discrimination. Specifically, appellant alleged that
she was discriminated against when on January 6, 1997 she was denied
the opportunity to work a limited duty position within her craft.
Informal efforts to resolve appellant's concerns were unsuccessful.
Accordingly, on October 21, 1997, appellant filed a formal complaint
alleging that she was the victim of unlawful employment discrimination
on the bases of color (black), sex (female), physical disability (post
traumatic stress), and mental disability (depression).
On November 10, 1997, the agency issued a final decision dismissing
appellant's complaint for failure to timely initiate contact with an
EEO Counselor. Specifically, the agency determined that appellant's
July 2, 1997 contact concerning an alleged event occurring January 6,
1997 was beyond the time limitations provided in EEOC Regulations.
In her statement on appeal, appellant asserts that she was subjected to
discrimination from early January 1997 through late May 1997. Therefore,
appellant contends, her EEO contact was within forty-five (45) days of
the last act of discrimination. Appellant further asserts that because
she had not obtained names of individuals that could substantiate her
complaint until June 15, 1997, her EEO contact was timely.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of
discrimination must be brought to the attention of the EEO 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 limitation period
is triggered. See Ball v. United States Postal Service, EEOC Request
No. 05880247 (July 6, 1988). Thus, the limitation period is not triggered
until a complainant reasonably suspects discrimination, but before all
the facts that support a charge of discrimination have become apparent.
Based on a thorough review of the record, the Commission finds that
appellant's complaint was properly dismissed by the agency for untimely
counselor contact. The Commission finds that appellant should have
had a reasonable suspicion of discrimination contemporaneous with the
incident described in her complaint. Appellant does not assert that she
was unaware of the time limitation for Counselor contact, and she has
supplied no persuasive explanation for her delay. Thus, the Commission
finds that appellant has not submitted adequate evidence to justify,
pursuant to EEOC Regulation 29 C.F.R. �1614.604(c), an extension of time
limitation for appellant's complaint.
On appeal, appellant makes a generalized statement that she was subjected
to discrimination from January 1997 through May of 1997. Appellant's
statement fails, however, to refer to specific incidents of alleged
discrimination to support her allegation. In that regard, we are not
persuaded by appellant's contention on appeal that her EEO contact was
made within forty-five (45) days of the last act of discrimination which
she claims occurred in May 1997.
CONCLUSION
Accordingly, the agency's decision dismissing appellant's complaint as
untimely is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (MO795)
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. 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:
January 12, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations