01992692
09-21-1999
Michelle Minnick, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Michelle Minnick v. United States Postal Service
01992692
September 21, 1999
Michelle Minnick, )
Appellant, )
) Appeal No. 01992692
v. ) Agency No. 1D-225-0007-99
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision (FAD) concerning 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. The appeal is accepted in
accordance with EEOC Order No. 960.001, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed a portion
of appellant's complaint for untimely contact with an EEO Counselor.
BACKGROUND
Appellant filed a formal complaint on December 28, 1998, alleging
discrimination on the basis of reprisal when (1) on or about April 10,
1998, following an interview for a career position, appellant was told
that she did not get the position due to her attendance; and (2) on or
about September 12, 1998, appellant became aware that another employee
was selected for a part-time flexible career position and after appellant
was advised that on September 17, 1998, that her name was removed from
the register.
On January 29, 1998, the agency issued its FAD. In the FAD, the agency
dismissed allegation (1) when it found that the incident occurred
on or about April 10, 1998 and appellant did not make EEO contact
until November 10, 1998, beyond the forty-five (45) day time limit.
The agency also found that appellant was aware of the time limit and did
not offer any evidence that would serve to persuade the agency to extend
the time limits for contacting the EEO Counselor. Therefore, the agency
dismissed appellant's allegation (1), pursuant to 29 C.F.R. �1614.107(b).
This appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(b) states that the agency shall
dismiss a complaint or a portion of a complaint that fails to comply
with the applicable time limits contained in �1614.105, �1614.106 and
�1614.204(c), unless the agency extends the time limits in accordance
with �1614.604(c).
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved
person must initiate contact with an EEO 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. EEOC Regulation 29 C.F.R. �1614.105(a)(2)
allows the agency or the Commission to extend the time limit if the
appellant can establish that appellant was not aware of the time limit,
that appellant did not know and reasonably should not have known that
the discriminatory matter or personnel action occurred, that despite
due diligence appellant was prevented by circumstances beyond (his or
her) control from contacting the EEO Counselor within the time limit,
or for other reasons considered sufficient by the agency or Commission.
The Commission has adopted a "reasonable suspicion" standard, as opposed
to a "supportive facts" standard, to determine when the limitation period
is triggered. See Ball v. United States Postal Service, EEOC Request
No. 05880247 (July 6, 1988) (interpreting 29 C.F.R. �1613.214(a)(1)(i)
- the predecessor of 29 C.F.R. �1614.105(a)(1)).
In the case at hand, appellant has alleged that she was not aware
that the agency's rejection of her application on April 10, 1998,
was discriminatory until October 1998. In appellant's pre-complaint
counseling form, she stated that she was informed on April 12, 1998, by
her supervisor that she did not get a promotion for which she applied and
the basis for the rejection was her attendance record. On September 17,
1998, after discovering that a co-worker was selected for that promotion,
appellant contacted a union steward to discuss the situation. In October
1998, the steward informed appellant that her attendance record should
not have been considered by management during the selection process.
Based on a review of the record, we find that appellant should have
reasonably suspected that the alleged discriminatory action occurred when
her application was rejected on April 12, 1998. In her pre-complaint
counseling form, Appellant states that she felt she was discriminated
against because she mentioned her prior EEO activity during the interview
and that was the reason she was not selected. This, in conjunction with
the rejection of her application, would have given appellant the requisite
reasonable suspicion that the incident may have been discriminatory.
Although appellant argues that her discussion with the steward was the
triggering event which made her realize the allegedly discriminatory
nature of the rejection, we do not find this argument compelling.
Therefore, we find that appellant contacted the EEO Counselor on November
10, 1998, beyond the forty-five (45) day limit. Hence, the Commission
finds that appellant was untimely in her EEO contact and the agency
properly dismissed appellant's allegation (1).
CONCLUSION
Accordingly, the decision of the agency 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. 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 (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:
Sept. 21, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations