05970890
06-17-1999
Gladys A. Montano Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency,
Gladys A. Montano v. United States Postal Service
05970890
June 17, 1999
Gladys A. Montano )
Appellant, )
)
v. ) Request No. 05970890
) Appeal No. 01966878
William J. Henderson, ) Agency No. 4H330164496
Postmaster General, )
United States Postal Service, )
Agency, )
)
DECISION ON REQUEST FOR RECONSIDERATION
INTRODUCTION
On July 7, 1997, appellant timely initiated a request to the
Equal Employment Opportunity Commission to reconsider the decision
in Gladys A. Montano v. Marvin T. Runyon, Jr., Postmaster General,
United States Postal Service, EEOC Appeal No. 01966878 (June 6, 1997),
which she received on June 11, 1997. EEOC regulations provide that the
Commission may, in its discretion, reconsider any previous decision.
29 C.F.R. �1614.407(a). The party requesting reconsideration must
submit written argument or evidence that tends to establish one or more
of the three criteria prescribed by 29 C.F.R. �1614.407(c): that new and
material evidence was available that was not available when the previous
decision was issued, 29 C.F.R. � 1614.407(c)(1); that the previous
decision involved an erroneous interpretation of law or regulation, or
material fact, or a misapplication of established policy, 29 C.F.R. �
1614.407(c)(2); or that the decision is of such exceptional nature as
to have substantial precedential effects, 29 C.F.R. � 1614.407(c)(3).
For the reasons set forth herein, the Commission grants appellant's
request.
ISSUE PRESENTED
Whether the agency correctly dismissed appellant's complaint for failure
to contact an EEO counselor in a timely manner.
BACKGROUND
The agency employed appellant as a window distribution clerk at its
facility in Hialeah, Florida. Effective May 6, 1995, she was terminated,
ostensibly for violating a "last chance" agreement that she signed on
July 1, 1993. On June 19, 1996, she contacted an EEO counselor with
allegations that she had been discriminated against on the bases of race
(White), sex, national origin (Honduras), and age (46), in connection
with her termination the year before. She informed the counselor that,
in the course of a conversation with the postmaster earlier that day,
she became aware of at least one black male employee who was fired after
violating a last chance agreement, but was rehired. In her initial
contact with the counselor and her formal complaint, to which the agency
assigned the number 4-H-330-1644-96, she identified June 19, 1996, as
the date of the incident. She stated in Complaint No. 4-H-330-1644-96:
I was terminated from my employment for violating a "last chance
settlement." The same situation occurred with a black male carrier who
was reinstated after violating his own last chance settlement agreement
by the same manager.
The agency issued its final decision in August 1996, dismissing Complaint
No. 4-H-330-1644-96, on the grounds that appellant failed to contact an
EEO counselor in a timely manner. The agency noted that appellant was
removed on May 6, 1995, but did not contact an EEO counselor until June
19, 1996, 410 days after the effective date of her removal.
In her appeal, appellant reiterated that she met with the Postmaster
on June 19, 1996, and that she became aware of the discrimination in
connection with her removal during the course of that conversation.
She maintained that the postmaster told her of at least two other
employees who violated last chance agreements, but were not disciplined
as harshly as she was. She reiterated that the postmaster told her that
she should contact an EEO counselor right away, and that she did so.
Nevertheless, the previous decision found that appellant's contact
with the counselor was untimely and affirmed the agency's dismissal of
Complaint No. 4-H-330-1644-96. It found that appellant should have had
reasonable suspicion of discrimination at the time of her removal in May
1995. In her request for reconsideration, appellant argues, in effect,
that the previous decision constitutes an erroneous interpretation of
material fact.
ANALYSIS AND FINDINGS
Commission regulations require complainants who believe that they have
been discriminated against to contact an EEO counselor within 45 days
of the alleged discriminatory incident. 29 C.F.R. � 1614.105(a)(1).
This time period is triggered as soon as the complainant reasonably
suspects discrimination. Peets v. United States Postal Service, EEOC
Request No. 05950725 (March 28, 1996). Throughout the processing of
her complaint, appellant maintained that she did not reasonably suspect
discrimination until her conversation with the postmaster on June 19,
1996. During this conversation, she learned that at least one employee
outside of her protected group who also violated a last chance agreement
was reinstated after being terminated. As soon as she became aware of
this alleged disparate treatment, she contacted a counselor.
In dismissing appellant's complaint for failure to timely contact an
EEO counselor, the burden is on the agency to show that appellant did
not initiate contact with an EEO counselor until after the expiration
of the 45-day time limit. Simmons v. Department of the Treasury, EEOC
Request No. 05970351 (February 26, 1999). In this case, the agency
maintains that appellant should have reasonably suspected discrimination
in May of 1995, when she was terminated. The agency has not, however,
presented any documents or statements tending to show that appellant
became aware of the other employee's situation before June 19, 1996.
We therefore find that it was the conversation between appellant and
the postmaster on June 19, 1996, rather than the May 1995 termination
itself, that should have triggered appellant's reasonable suspicion
of discrimination. Since appellant contacted an EEO counselor on the
same day that she began to reasonably suspect discrimination, we find
that her contact with an EEO counselor on June 19, 1996, was timely.
CONCLUSION
After a review of appellant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that the
appellant's request meets the criteria of 29 C.F.R. �1614.407(c). It is
therefore the decision of the Commission to grant appellant's request.
The decision of the Commission in EEOC Appeal No. 01966878 affirming
the agency's dismissal of Complaint No. 4-H-330-1644-96 is reversed.
The agency's final decision dismissing Complaint No. 4-H-330-1644-96,
for untimely contact with an EEO counselor is reversed and the matter
remanded for processing in accordance with our order below. There is no
further right of administrative appeal from a decision of the Commission
on request for reconsideration.
ORDER (E1092)
The agency is ORDERED to process Complaint No. 4-H-330-1644-96 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 that it receives this decision. 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 that it receives this decision, 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.
RIGHT TO FILE A CIVIL ACTION (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. 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.
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:
June 17, 1999
_______________ ______________________________
Date Frances M. Hart
Executive Officer
Executive Secretariat