Lydia Gardner, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 10, 2000
01991322 (E.E.O.C. Feb. 10, 2000)

01991322

02-10-2000

Lydia Gardner, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Lydia Gardner, )

Complainant, )

)

v. ) Appeal No. 01991322

) Agency No. 98-3127

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION

On December 1, 1998, complainant filed a timely appeal with this

Commission from a final agency decision (FAD) received by her on

November 23, 1998, pertaining to her complaint of unlawful employment

discrimination in violation of the Age Discrimination in Employment Act of

1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1> In her complaint,

complainant alleged that she was subjected to discrimination on the

basis of age when she learned on August 10, 1998, that the Licensed

Practical Nurse Standards Board (Board) failed to recommend complainant

for a promotion to GS-6 Licensed Practical Nurse during its February

1998 meeting.

The agency dismissed the complaint for untimely counselor contact.

Specifically, the agency found that complainant learned of the alleged

discriminatory event on August 10, 1998, but failed to contact an EEO

Counselor until September 25, 1998. The agency also found, contrary

to complainant's arguments, that complainant had actual or constructive

knowledge of the EEO process and its time limits, because she had received

training on EEO matters.

On appeal, complainant admits that her claim was not timely raised with

a counselor, but argues that the discrimination she suffered was unfair,

and should be investigated. Complainant also asserts that although lack

of knowledge might not have been the reason for her delay in filing,

her lack of trust in the EEO system was the reason for her delay.

Complainant attached several documents to her appeal, including a step-2

grievance appeal, dated April 18, 1997, regarding the agency's failure

to promote complainant in a prior Board meeting.

In response, the agency notes that complainant contacted a counselor

forty-six (46) days after she discovered the incident alleged. The agency

attached a list of training classes complainant attended, including two

training sessions concerning EEO matters, taken on December 8, 1993,

and March 15, 1996. The agency also attached an affidavit from the

facility's EEO official, stating that EEO information, including the

time limits to file, was posted at complainant's work-site. A copy of

the posters was enclosed.

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

of discrimination 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 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 she 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.

The Commission finds that complainant realized she had been discriminated

against on August 10, 1998. In order to be timely, she should have

contacted a counselor by Thursday, September 24, 1998. Complainant's

argument that she was not aware of the time limits to file, or of the

option of pursuing her claim through the EEO process, is contradicted

by her training history, by the EEO postings, and by her own admission

on appeal. Further, complainant's argument, made for the first time on

appeal, that she did not file because she did not trust the EEO process,

also fails to justify her one-day delay in filing.

CONCLUSION

Accordingly, the agency's dismissal is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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). 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

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:

February 10, 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 Equal Employment Assistant

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.