01990465
09-23-1999
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