01990164
08-12-1999
Mary A. Guzman, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Mary A. Guzman, )
Appellant, )
)
v. ) Appeal No. 01990164
) Agency No. 1-G-761-0177-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On October 5, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) received by her on September 28,
1998, pertaining to her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. In her complaint, appellant alleged that
she was subjected to discrimination on the basis of national origin
(Hispanic) when:
On January 2, 1998, appellant was not reappointed to another term as
a Transitional Employee (TE); and
On April 30, 1998, appellant was not selected for a Mail Processor
career position.
The agency dismissed appellant's complaint pursuant to EEOC Regulation
29 C.F.R. �1614.107(b), for untimely counselor contact. Specifically,
the agency found that appellant requested EEO counseling on July 23,
1998, more than forty-five (45) days after the issues alleged.
On appeal, appellant argues, through her representative, that she has been
subjected to a continuing pattern of discrimination. Appellant explains
that she has been denied employment with the agency three times in six
months.<1> Further, appellant argues that she did not realize that she
was being discriminated against until she discovered on July 4, 1998
that a Caucasian with lower examination scores was given a career mail
processor position. Appellant also argues that a less qualified Caucasian
was retained as a TE in January 1998, when appellant was released.
A review of the record reveals that appellant never claimed to suffer from
a pattern of discrimination until the present appeal. Appellant failed
to claim any such pattern in her request for counseling, dated July
23, 1998, or in her formal complaint, dated July 30, 1998. The issue
also is not included in the Counselor's report, dated August 14, 1998.
A review of the formal complaint also indicates that appellant knew
that the Caucasian co-worker with a lower score �received a level 5
application letter . . . in January 1998.�
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. United States Postal
Service, EEOC Request No. 05880247 (July 6, 1988). Thus, the time
limitation can be triggered before all the facts that support a charge
of discrimination have become apparent, but not until a complainant
reasonably suspects discrimination.
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 appellant initially contacted an EEO Counselor
on July 23, 1998. Further, the Commission finds that appellant had a
reasonable suspicion of discrimination in allegation (1) by January 1998.
Therefore, allegation (1) was not timely raised.
Regarding allegation (2), the Commission is not persuaded by appellant's
argument that she did not have a reasonable suspicion of discrimination
until discovering, in July 1998, that a less qualified Caucasian was hired
for a career position. Appellant, in her formal complaint, admitted
knowledge that the same less qualified employee was given application
materials for a permanent position in January 1998. Further, appellant
had knowledge that she was not selected for a permanent position on
April 30, 1998. The Commission finds that appellant should have had
a reasonable suspicion of discrimination at the time she discovered
that she was denied employment, not at the point she claims to have
discovered supportive facts in July 1998. Accordingly, allegation (2)
also was not timely raised.
The Commission has held that the time requirements for initiating EEO
counseling could be waived as to certain allegations within a complaint
when the complainant alleged a continuing violation; that is, a series
of related discriminatory acts, one of which fell within the time period
for contacting an EEO Counselor. See McGivern v. United States Postal
Service, EEOC Request No. 05901150 (Dec. 28, 1990).
Appellant's allegation of a continuing violation, which she raised
for the first time on appeal, does not render her complaint timely.
The continuing violation theory requires that at least one of appellant's
allegations be timely. Both of appellant's allegations, however, were
raised beyond the time period for contacting an EEO Counselor.
CONCLUSION
Accordingly, the agency's dismissal 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:
August 12, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1Although appellant argues that she was denied employment three separate
times, she only articulated two separate denials in her formal complaint,
and has not raised any incidents since filing her complaint.