01A21723_r
05-10-2002
Maria R. Stewart, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Maria R. Stewart v. United States Postal Service
01A21723
May 10, 2002
.
Maria R. Stewart,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A21723
Agency No. 1B-033-0001-02
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dismissing her complaint of unlawful employment
discrimination for untimely EEO Counselor contact, pursuant to 29
C.F.R. � 1614.107(a)(2). In her complaint, complainant claimed that was
discriminated against on the bases of race (Hispanic), national origin
(Honduran) and in retaliation for prior EEO activity when, from March 7,
2001, through July 18, 2001, complainant was subjected to a hostile work
environment, which resulted in her resignation, effective July 18, 2001.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires complaints of
discrimination to be brought to the attention of the EEO Counselor within
forty-five (45) days of the date of the claimed discriminatory matter,
or, in the case of a personnel action, within forty-five (45) days of
the effective date of the action. The Commission's regulations, however,
provide that the time limit will be extended when the complainant shows
that he or she was not notified of the time limits and was not otherwise
aware of them, that he or she did not know and reasonably should not have
known that the discriminatory matter or personnel action occurred, that
despite due diligence he or she was prevented by circumstances beyond his
or her control from contacting the counselor within the time limits, or
for other reasons considered sufficient by the agency or the Commission.
See 29 C.F.R. � 1614.105(a)(2).
In its decision dated December 31, 2001, the agency dismissed
complainant's complaint because complainant failed to contact an EEO
Counselor within the prescribed time frame. Specifically, it noted that
complainant requested EEO counseling on September 19, 2001, which was
beyond (forty-five) 45 days from the effective date of complainant's
resignation, on July 18, 2001.
On appeal, complainant asserts that she left messages on the voicemail
of the EEO Counselor on August 29, 2001 and September 5, 2001; however,
it was not until September 19, 2001 that her telephone call was returned.
The Commission determines that complainant had either actual or
constructive knowledge of the applicable limitation period, and that she
should have reasonably suspected discrimination on July 18, 2001, the
date that her resignation became effective. If complainant initiated
contact with the EEO Counselor on August 29, 2001, then her contact
would have been timely; however, the agency does not address the issue
of whether complainant left voicemail messages with the EEO Counselor on
August 29, 2001. As a result of the agency's failure to address whether
complainant attempted to contact the EEO Counselor on August 29, 2001,
we are unable to determine at this time, whether complainant's contact
with the EEO Counselor was timely.
Accordingly, the agency's decision is VACATED, and the complaint is
REMANDED to the agency for further processing in accordance with the
Order below.
ORDER
The agency shall conduct a supplemental investigation and place
evidence in the record establishing the date on which complainant first
initiated contact with the EEO Counselor, specifically addressing whether
complainant attempted to contact the EEO Counselor on August 29, 2001.
The agency shall then re-determine whether complainant's contact with the
EEO Counselor was timely, and shall then either issue a letter accepting
the complaint for investigation or issue a new decision dismissing the
complaint within 30 calendar days of the date this decision becomes final.
A copy of the letter accepting the complaint or a copy of the decision
dismissing the complaint must be submitted to the Compliance Officer as
referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement of
the order. 29 C.F.R. � 1614.503(a). The complainant also has the right
to file a civil action to enforce compliance with the Commission's order
prior to or following an administrative petition for enforcement. See 29
C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively,
the complainant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this
decision. 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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 10, 2002
__________________
Date