01985245
06-16-1999
Gloria A. Earl, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Gloria A. Earl v. United States Postal Service
01985245
June 16, 1999
Gloria A. Earl, )
Appellant, )
)
v. )
) Appeal No. 01985245
William J. Henderson, ) Agency No. 4-H-370-0099-98
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
The appellant timely filed an appeal with this Commission from a final
agency decision (FAD), dated May 20, 1998, which the agency issued
pursuant to EEOC Regulation 29 C.F.R. �1614.107(b). The Commission
accepts the appellant's appeal in accordance with EEOC Order No. 960,
as amended.
According to the record, appellant initiated contact with the EEO office
on December 16, 1997. Appellant alleged that she was the victim of
unlawful employment discrimination on the bases of physical disability
(left wrist) and reprisal (prior EEO activity). Informal efforts to
resolve her concerns were unsuccessful.
On March 30, 1998 appellant filed a formal complaint alleging she
was discriminated against when the injury compensation office sent
a blank CA-2A form to OWCP causing appellant's claim to be denied.
On the complaint form, in the portion where complainant's are requested
to indicate the date on which the alleged incident of discrimination
occurred, appellant entered "6-9-97 processed by OWCP 9/25/97."
The agency dismissed appellant's complaint for failure to timely seek
EEO counseling. Specifically, the agency determined that appellant
first contacted the EEO office on December 16, 1997. The FAD concluded
appellant's contact was 190 days after the June 9, 1997 event date,
and therefore well beyond the forty-five (45) day time limitation.
On appeal, appellant argues that she was not aware of the event until
she received a copy of her medical records from OWCP in December 1997.
Therefore, she contends her December 16, 1997 EEO counselor contact was
timely.
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.
In the instant case, the agency determined that appellant alleged that
on June 9, 1997 the injury compensation office sent a blank CA-2A to
OWCP causing appellant's claim to be denied, and that her initial
EEO counselor contact on December 16, 1997 was therefore untimely.
The record contains three separate dates provided by the appellant as the
date that the alleged incident of discrimination occurred: in her formal
complaint, she stated June 9, 1997 and September 25, 1997; and on appeal
she states December 1997. As there is conflicting information in the
record regarding when the alleged incident in the complaint precisely
occurred and when appellant should have had a reasonable suspicion of
discrimination, we are unable to determine whether appellant's initial
EEO counselor contact was timely. Accordingly, the agency's decision
to dismiss appellant's complaint is VACATED. Appellant's complaint is
REMANDED to the agency for further processing in accordance with the
ORDER below.
ORDER
The agency is ORDERED to take the following action:
The agency shall contact appellant and conduct a supplemental
investigation to ascertain the exact date(s) that the matters addressed
in appellant's formal complaint purportedly occurred, as well as the
date appellant first reasonably suspected discrimination. Thereafter,
the agency shall issue a final decision or notify the appellant that
the agency is processing her complaint. The supplemental investigation
and issuance of the notice of processing or new final decision must
be completed within sixty (60) calendar days from the date that this
decision becomes final.
A copy of the new final agency decision or notice of processing 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 (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 16, 1999
___________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations