01994201
02-15-2000
Margie C. Valderrama, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Margie C. Valderrama, )
Complainant, )
)
v. ) Appeal No. 01994201
) Agency No. 4F-950-0162-98
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On April 26, 1999, complainant filed a timely appeal of a March 23,
1999 final agency decision, which was received by her on March 26, 1999,
dismissing one claim in her complaint due to untimely EEO Counselor
contact.<1>
In its final decision, the agency identified the claims of complainant's
July 28, 1998 complaint as whether complainant was discriminated against
based on national origin (Hispanic) and age (DOB: 11/25/43) when: (1) in
February 1998, she was bypassed for detail as a 204B; and (2) on May 22,
1998, she was denied a detail to the vending machine audit. The agency
stated that the alleged incident in claim (1) occurred on February 28,
1998, but complainant did not contact an EEO Counselor until May 27,
1998, which was beyond the requisite time limit. The agency accepted
claim (2) for investigation.
With regard to the timeliness of her EEO Counselor contact, complainant
indicated that when the alleged discrimination occurred for the first
time in February 1998, she decided not to contact an EEO Counselor, but
when she was discriminated against again for the second time in May 1998,
she decided that she had to do something and contacted an EEO Counselor.
On appeal, complainant does not raise any new contentions.
Initially, we note that complainant's appeal involves the agency's
dismissal of a portion of the claims in the complaint. Volume 64
Fed. Reg. 37, 644, 37, 656 (1999)(to be codified and hereinafter referred
to as 29 C.F.R. � 1614.107(b)) provides that where an agency decides
that some but not all of the claims in a complaint should be dismissed,
the agency shall notify the complainant of its determination; however
this determination is not appealable until final action is taken on
the remainder of the complaint. The Commission previously inquired
of the parties the status of the remainder of the complaint at issue.
Based on the responses, it appears that the remainder was the subject of
a final agency decision on May 10, 1999, rendering those claims pending
herein the only remaining viable matters and ripe for review on appeal.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination be brought to the attention of the EEO Counselor within
45 days of the alleged discriminatory event, or the effective date of
an alleged discriminatory personnel action.
The Commission has adopted a �reasonable suspicion� standard (as opposed
to a �supportive facts� standard) to determine when the limitation period
is triggered under the EEOC Regulations. See 29 C.F.R. � 1614.105(a)(2);
Ball v. United States Postal Service, EEOC Request No. 05880247 (July 6,
1988). Thus, the limitations 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.
Upon review, we find that the alleged incident, i.e., the denial of detail
as a 204B, occurred in February 1998, but complainant did not contact
an EEO Counselor until May 27, 1998, which was beyond the 45-day time
limit set by the regulations. We also find that complainant's delay in
contacting an EEO Counselor until she was discriminated against for the
second time did not constitute justification to warrant an extension
of the applicable time limit for contacting an EEO Counselor. It is
noted that the Commission has held that all complainants must act with
due diligence in the pursuit of their claims or the doctrine of laches
may be applied. The doctrine of laches is an equitable remedy under
which an individual's failure to diligently pursue their actions could
bar their claim. See O'Dell v. Department of Health and Human Services,
EEOC Request No. 05901130 (December 27, 1990). Accordingly, the agency's
final decision is hereby 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 15, 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.