01992877
01-11-2000
Joy Jester, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Joy Jester, )
Complainant, )
)
v. ) Appeal No. 01992877
) Agency No. 1-I-531-0019-99
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
We find that the agency's January 27, 1999 decision dismissing the
complaint on the grounds of untimely EEO counselor contact is proper
pursuant to the provisions of 64 Fed. Reg. 37,644, 37,656 (1999) (to be
codified and hereinafter referred to as 29 C.F.R. � 1614.107(a)(2).<1>
The record shows that on October 17, 1998, Complainant sought EEO
counseling alleging that she had been discriminated against on the
bases of race (Black) and sex (female) when on July 1, 1998, she
learned that she had been discriminated against when she was fired for
no reason in 1993. Subsequently, Complainant filed a formal complaint
of discrimination.
The agency issued a final decision dismissing the complaint on the
grounds of untimely EEO counselor contact after finding that Complainant
had failed to seek EEO counseling within 45 days of her separation on
March 18, 1993.
On appeal, Complainant contends that she was unaware of her EEO rights.
In response to Complainant's contention, the agency has provided an EEO
Investigative Affidavit in which the Manager of Distribution Operations
states that she has worked at the facility since 1985, and that EEO
posters have been prominently displayed throughout the facility.
The agency has also provided a copy of the EEO poster which provides
the applicable time limits.
The Commission applies a "reasonable suspicion" standard to the
triggering date for determining the timeliness of the contact with an
EEO counselor. Cochran v. United States Postal Service, EEOC Request
No. 05920399 (June 18, 1992). Under this standard, the time period
for contacting an EEO counselor is triggered when the complainant should
reasonably suspect discrimination, but before all the facts that would
support a charge of discrimination may have become apparent. Id.;
Paredes v. Nagle, 27 FEP Cases 1345 (D.D.C. 1982).
Based on the record we find that the agency has provided evidence
sufficient to support application of a constructive notice rule.
Pride v. USPS, EEOC Request No. 05930134 (August 19, 1993). Accordingly,
we find that Complainant had constructive notice of her EEO rights. We
also find that complainant suspected or should have reasonably suspected
discrimination on March 18, 1993, when she was removed from her position.
Accordingly, she should have sought EEO counseling within the 45-day
time limit provided by EEOC Regulations. Instead, the record shows
that she did not seek EEO counseling until October 7, 1998, over 5 years
after her separation from service. Complainant claims that she did not
realize she had been discriminated against until October 1998. We are
not persuaded by her statement. The Commission has consistently held
that complainants must act with due diligence in the pursuit of their
claims or the doctrine of laches may be applied. O'Dell v. Department
of Health and Human Services, EEOC Request No. 05901130 (December 27,
1990). Accordingly, the complaint was properly dismissed on the basis
of untimely EEO counselor contact. Based on the foregoing, the final
agency decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, MUST BE FILED
WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR
DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS
OF RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). All requests and arguments must 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
timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.604).
The request or opposition must also include proof of service on the
other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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. 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 (Z1199)
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:
Jan. 11, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
___________ __________________________________
DATE EQUAL EMPLOYMENT ASSISTANT
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all Federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at WWW.EEOC.GOV.