Linda Kuchta, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 23, 1999
01990465 (E.E.O.C. Sep. 23, 1999)

01990465

09-23-1999

Linda Kuchta, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Linda Kuchta v. United States Postal Service

01990465

September 23, 1999

Linda Kuchta, )

Appellant, )

)

v. )

) Appeal No. 01990465

William J. Henderson, ) Agency No. 4-I-530-0091-98

Postmaster General, )

United States Postal Service, )

Agency. )

______________________________)

DECISION

On September 16, 1998, appellant filed a timely appeal with this

Commission from a final agency decision (FAD), dated August 19, 1998,

dismissing her complaint for untimely counselor contact. The Commission

accepts the appellant's appeal in accordance with EEOC Order No. 960,

as amended.

On May 6, 1998 appellant contacted the EEO office alleging discrimination

based on sex (female) when:

On May 1, 1993, her PTR data collection technician position was

abolished;

On April 30, 1994, after being reassigned to a PTR data collection

technician position in the Milwaukee Post Office, her PTR clerk position

in Burlington was changed to a PTF clerk position;

In April 1995, October 1996 and March 6, 1998 her hours were changed.

The agency dismissed appellant's complaint for untimely counselor contact,

pursuant to 29 C.F.R. �1614.107(b). The FAD stated that appellant should

have been aware of the time limitations as EEO posters, indicating the

forty-five (45) day limit, were clearly on display.

On appeal, appellant reiterates her allegations of discrimination.

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.

Further, in order to commence the running of the forty-five (45) day

limitations period for requesting EEO counseling, the complainant must

have either actual or constructive knowledge of the time limit. See York

v. Dept. of Veterans Affairs, EEOC Request No. 05940575 (Nov. 2, 1994).

It is the Commission's policy that constructive knowledge will be

imputed to an employee when an employer has fulfilled its obligations

under EEOC Regulations for publicizing the time limits for contacting

an EEO Counselor. See Starr v. Dept. of Veterans Affairs, EEOC Request

No. 05950455 (Sept. 28, 1995) (citing Thompson v. Dept. of the Army,

EEOC Request No. 05910474).

Based on a review of the record, the Commission finds that the agency

properly dismissed the complaint for untimely counselor contact.

Appellant waited until May 1998 to contact a counselor regarding

allegations that occurred as early as 1993. Appellant does not argue

that she did not "reasonably suspect" discrimination until forty-five

days before her EEO counselor contact. Moreover, she does not claim to

be unaware of the time limitations. The agency has provided an affidavit

from the Postmaster at Union Grove who was employed at the Burlington Post

Office during 1993. The Postmaster attests to the particular location

of an EEO poster displayed throughout his assignment to Burlington.

We find, therefore, that appellant had constructive knowledge of the

applicable time limits. See Santiago v. United States Postal Service,

EEOC Request No. 05950272 (July 6, 1995).

Accordingly, the agency's decision dismissing the complaint 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:

09/23/1999

__________________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations