Janet McKinney, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 8, 1999
01992898D (E.E.O.C. Nov. 8, 1999)

01992898D

11-08-1999

Janet McKinney, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Janet McKinney, )

Appellant, )

)

v. ) Appeal No. 01992898

) Agency No. 4G-730-0005-99

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

______________________________)

DECISION

On February 23, 1999, appellant filed a timely appeal with this Commission

from a final agency decision (FAD) issued on January 6, 1999, pertaining

to a 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 Section 501 of the Rehabilitation Act of 1973, as amended,

29 U.S.C. �791 et seq. The Commission accepts appellant's appeal in

accordance with EEOC No. 960, as amended.<1>

According to the record, appellant initiated contact with an EEO Counselor

on September 8, 1998. During the counseling period, appellant alleged

that on or about July 7, 1998 she first received notice that she was

being terminated for improper conduct. However, the record reflects,

that on May 31, 1998 appellant submitted a complaint to the Labor

Relations Board contesting the

allegations of fraud and improper conduct that prompted the agency to

issue the removal letter.

On November 10, 1998, Appellant filed a formal complaint, alleging that

she was the victim of unlawful employment discrimination on the basis of

race, gender and physical disability. Appellant's complaint was comprised

of the matter in which she underwent EEO Counseling, discussed above.

On January 6, 1999, the agency issued a final agency decision (FAD) by

both regular and return receipt certified mail dismissing appellant's

complaint for failure to initiate timely contact with an EEO Counselor.

According to the record, the certified copy of the FAD was returned

unclaimed. However, the decision sent by regular mail was not returned

to the agency. The agency found that the alleged discriminatory event

addressed in the complaint occurred on May 19, 1998 the date the removal

letter was issued and not July 7, 1998. The agency also found that

appellant did receive notice of the decision prior to July 7, 1998 and

in fact prior to May 31, 1998 because on that date, she wrote a letter

to the Labor Relations Board contesting the issue of improper conduct

that was the impetus behind the removal issued on May 19, 1998.

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 Howard v. Department of the Navy,

EEOC Request No. 05970852 (February 11, 1999). 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 case at bar, the Commission will impute that appellant had at the

very least, a �reasonable suspicion� that she may have been the victim

of discrimination when she wrote her letter to the Labor Relations Board

contesting the allegations of fraud and improper conduct. Therefore, the

time in which to begin calculating the 45 day period in which to contact

an EEO Counselor pursuant to 29 C.F.R. �1614.105(a)(1) will be May 31,

1998. Clearly, since appellant initiated contact with an EEO Counselor

on September 8, 1998, she did so outside the 45 day period in which to

initiate contact. Furthermore, the record is void of any reason to extend

the 45 day period pursuant to 29 C.F.R. �1614.105(a)(2). Accordingly,

the agency's decision to dismiss appellant's complaint for failure to

initiate contact with an EEO Counselor was proper and is AFFIRMED.

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 (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. 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:

November 8, 1999

____________________________

DATE Carlton M. Hadden, Acting Director

1 Since the agency did not supply a copy of a certified mail

return receipt or any other material capable of establishing

the date appellant received the agency's final decision, the

Commission will presume that appellant's appeal was filed within

thirty (30) days of receipt of the agency's final decision. See,

29 C.F.R. �1614.402.