Judy Ciarpella, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 19, 2000
01995125 (E.E.O.C. May. 19, 2000)

01995125

05-19-2000

Judy Ciarpella, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Judy Ciarpella, )

Complainant, )

)

v. ) Appeal No. 01995125

) Agency No. 4-K-210-0043-99

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION

On June 9, 1999, complainant filed a timely appeal with this Commission

from a final agency decision (FAD) pertaining to 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.<1>

We accept the appeal pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified at 29 C.F.R. � 1614.405).

On November 20, 1998, complainant contacted the EEO office regarding

her claim of discrimination based on sex, disability, and reprisal.

Complainant contends that after her return to work following foot

surgery, on September 21, 1998, the agency placed her in a limited duty

assignment (clerk), but changed her schedule regarding her days off.

Informal efforts to resolve complainant's concerns were unsuccessful.

Accordingly, on April 5, 1998, complainant filed a formal complaint

against the agency.

The agency issued a FAD, dated May 14, 1999, dismissing the complaint

for untimely counselor contact. The FAD indicated that complainant's

November 20, 1998 counselor contact was beyond the 45 day time limitation,

noting that complainant informed the counselor that September 21, 1998,

was the date the discriminatory incident. The FAD further indicated

that there was no evidence that complainant was unaware of this time

requirement, attaching a sworn affidavit that an EEO poster with this

information was posted in complainant's work area. The FAD also found

that complainant failed to proffer any reason to justify an extension.

On appeal, complainant argues that she was unaware that her schedule

change was discriminatory until October 17, 1998, when she learned she

was still a �regular letter carrier� despite her limited duty assignment;

and that because of this status, she was entitled to retain her usual

days off, or, alternatively, to be given a rotating days off schedule

like the other letter carriers. Complainant argues that her EEO contact

was therefore timely, and that the agency's dismissal was improper.

Volume 64 Fed. Reg. 37,644, 37656 (1999) (to be codified and hereinafter

referred to as EEOC

Regulation 29 C.F.R. � 1614.105(a)(1)) requires that complaints of

discrimination should 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 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 he 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.

Review of the formal complaint reflects that complainant acknowledged

that she suspected the agency's motives in changing her schedule when a

co-worker returned from an injury, apparently around the same time as she

returned from an injury, in September 1998, but that the co-worker was

allowed to retain his former schedule while in �restricted� duty status.

Complainant further elaborated that she: �knew management was retaliating

against me because they did not give me my regular non-scheduled days

off when I returned back from my second foot surgery.� Moreover, as

noted in the FAD, the EEO counselor's report indicates that complainant

identified September 21, 1998, the day she returned to work, as the date

the discrimination occurred. Despite complainant's contention to the

contrary on appeal, we determine that complainant had, or should have

had, reasonable suspicion of unlawful employment discrimination when she

returned to work on September 21, 1998, when she first learned that her

schedule was changed under the limited duty assignment. Therefore, we

find that complainant's EEO contact on November 20, 1998, was beyond the

45-day time limit, and was therefore untimely. Accordingly, the agency's

DISMISSAL of the instant complaint was proper and the FAD is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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); Equal Employment Opportunity Management

Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).

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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

May 19, 2000

____________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

1On 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.