01993229
05-05-2000
Linda McPhail, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Linda McPhail, )
Complainant, )
)
v. ) Appeal No. 01993229
) Agency No. 4B-020-0005-99
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
Upon review, the Commission finds that agency's dismissal of
the complainant's complaint was properly dismissed pursuant to 64
Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter referred
to as EEOC Regulation 29 C.F.R. � 1614.107(a)(2)), for untimely EEO
contact.<1>
The record discloses that the complainant resigned in June 1996. She was
reinstated on December 7, 1996 as a part-time, flexible mail handler
and assigned a seniority date of December 7, 1996. The record also
discloses that the complainant contacted an EEO Counselor on September
25, 1998, alleging that she was discriminated against on the basis of
sex on September 24, 1998 and August 14, 1998, regarding the seniority
date that she was given when she was reinstated.
On appeal, the complainant asserts that she was not aware that her
seniority date was changed until August 1998, and therefore she would
not receive credit for her previous eight years of service. In its
response to the complainant's appeal, the agency asserts, among other
things, that the complainant was the successful bidder for a mail handler
position on July 18, 1998, and that the agency posted, pursuant to the
union agreement, a notice identifying the complainant as the successful
bidder and her seniority date. Accordingly, the agency asserts that
the complainant should have known her seniority date at the latest by
July 18, 1998. The agency also asserts that the complainant does not
indicate what occurred in August 1998 to lead to the alleged discovery
that her seniority date was changed.
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 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 45-day limitation
period is triggered. See Ball v. U.S. Postal Service, 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.
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) requires agencies to dismiss
a complaint or portion of a complaint which fails to comply with the
time limitations set forth in 29 C.F.R. � 1614.105. EEOC Regulation �
1614.105(a)(1) requires that an aggrieved individual initiate contact
with an EEO Counselor within 45 days of the date of 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) further provides that the agency or the Commission shall
extend the 45-day time limit when the individual shows that he or she:
(1) was not notified of the time limits and was not otherwise aware of
them; (2) did not know and reasonably should not have known that the
discriminatory matter or personnel action occurred; and (3) despite due
diligence was prevented by circumstances beyond his or her control from
contacting the Counselor within the time limits.
Although the alleged discriminatory event occurred on December 7, 1996,
the complainant did not initiate contact with an EEO Counselor until
September 25, 1998, which was beyond the 45-day limitation period.
The complainant's EEO Counselor contact was therefore untimely.
See Goodwin v. U.S. Postal Service, EEOC Appeal No. 01956326 (March 18,
1996) (complainant should have been aware of seniority date at the time
of reinstatement).
Although the complainant asserts that she was not aware of her seniority
date until August 1998, the Commission has held that a complainant must
act with due diligence in the pursuit of his or her claim or the doctrine
of laches may be applied. A complainant must be reasonably diligent in
determining actions that affect employment status. Failure to diligently
pursue an action can bar the claim. See O'Dell v. Department of Health
and Human Services, EEOC Request No. 05901130 (December 27, 1990).
In addition, the record reveals that in July 1998, the agency posted
bid results which identified the complainant as a successful bidder for
a mail handler position and identified her seniority date.<2>
Based on the foregoing, the agency's final decision dismissing the
complainant's complaint on the grounds of failure to contact an EEO
Counselor in a timely manner is AFFIRMED.<3>
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 5, 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 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.
2The Commission notes that on appeal the complainant stated that by
letter dated August 14, 1998, she notified the agency's Director of
Human Resources that the complainant had been discriminated against
on the basis of sex. Although the complainant indicated in her appeal
that that letter and other documents were attached to her appeal, none
of the referenced documents were attached.
3The Commission notes that the complaint was also dismissed by the agency
on the alternative grounds of failure to state a claim.