01976815_r
12-18-1998
Linda D. Cookman, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Linda D. Cookman, )
Appellant, )
) Appeal No. 01976815
v. ) Agency No. 1-I-531-0152-97
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
On September 1, 1997, appellant filed an appeal of a July 31, 1997 final
agency decision dismissing one of two allegations of her complaint for
failure to contact an EEO Counselor in a timely manner. The agency
failed to provide a certified mail return receipt or any other material
capable of establishing the date when appellant received the final
agency decision. Accordingly, the Commission presumes that appellant's
appeal was filed within 30 days of appellant's receipt of the agency's
final decision. Accordingly, the appeal is accepted as timely (see,
29 C.F.R. �1614.402(a)), in accordance with the provisions of EEOC Order
No. 960, as amended.
The final agency decision framed the allegations of appellant's June 24,
1997 complaint as whether appellant was discriminated against on the
basis of retaliation (prior EEO activity) when: (1) on March 2-4, 1997,
her request for leave (Form 3971) under the Family and Medical Leave Act
(FMLA) was denied; and (2) on May 2, 1997, her request for a change of
schedule (Form 3189) was denied. In dismissing allegation (1), the agency
noted that because appellant did not contact an EEO Counselor until May
9, 1997, regarding the alleged discriminatory actions, her contact was
beyond the 45-day time period and, therefore, untimely. The agency
also noted that appellant should have had a reasonable suspicion of
discrimination when the alleged actions occurred. Allegation (2) was
accepted for further processing.
On appeal, appellant asserts that because the agency did not return
her requests for leave (Forms 3971) until March 26, 1997, her contact
was timely. In support of her assertion, appellant submitted copies of
the Forms 3971 on appeal.
The record contains appellant's Information for Precomplaint Counseling
which reveals that on March 2-4, 1997, appellant called the agency
requesting leave under the FMLA and her requests were denied by Supervisor
A. The Forms 3971 reflect that they were submitted on March 2, 1997 and
March 3, 1997, for leave from March 2, 1997 through March 3, 1997, and
from March 3, 1997 through March 4, 1997. These two forms were �approved,
not FMLA� and were both signed by Supervisor B on March 26, 1997.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that an aggrieved
person initiate contact with an EEO Counselor within 45 days of the
date of the matter alleged to be discriminatory or, in the case of a
personnel action, within 45 days of the effective date of the action.
EEOC Regulation 29 C.F.R. �1614.105(a)(2) permits the time period to be
extended under certain circumstances and 29 C.F.R. �1614.604(c) provides
that the time limits in Part 1614 are subject to waiver, estoppel and
equitable tolling. The Commission has adopted a "reasonable suspicion"
standard (as opposed to a "supportive facts" standard) to determine
when the 45-day limitation period is triggered. See Ball v. U.S. Postal
Service, EEOC Request No. 05880247 (July 6, 1988). Thus, the limitation
period is not triggered until a complainant should reasonably suspect
discrimination, but before all the facts that would support a charge of
discrimination have become apparent. When a complainant has some reason
to support the belief that prohibited discrimination has occurred,
contact with a Counselor must occur. Waiting until one has proof of
discrimination before initiating a complaint can result in untimely
contact. See Bracken v. U.S. Postal Service, EEOC Request No. 05900065
(March 29, 1990).
As an initial matter, we note that it is not disputed that
appellant initiated EEO contact on May 9, 1997, regarding the alleged
discrimination. Appellant also does not dispute that she was aware of
the time limit. In addition, appellant herself acknowledged in her
Information for Precomplaint Counseling that her FMLA leave requests
were denied by March 4, 1997. Accordingly, we find that allegation
(1) was properly dismissed on the grounds of untimely EEO contact and
appellant has not provided adequate justification sufficient to extend
the time limit. Although appellant asserts that she did not receive the
signed Forms 3971 until March 26, 1997, appellant knew by March 4, 1997,
that her FMLA leave requests had been denied. There is no evidence to
show that appellant had reason to question the finality of that denial.
Therefore, her contact was untimely. Accordingly, the agency's dismissal
of allegation (1) 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. 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 (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:
Dec. 18, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations