Michelle Minnick, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 21, 1999
01992692 (E.E.O.C. Sep. 21, 1999)

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