Norris McFarland, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJul 26, 2000
01994153 (E.E.O.C. Jul. 26, 2000)

01994153

07-26-2000

Norris McFarland, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Norris McFarland v. USPS

01994153

July 26, 2000

.

Norris McFarland,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01994153

Agency No. 4G-760-0107-99

DECISION

On April 21, 1999, complainant filed a timely appeal with this Commission

from a final agency decision (FAD), 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.<1> The

Commission accepts the appeal in accordance with 64 Fed. Reg. 37,644,

37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).

On January 19, 1999, complainant contacted the EEO office regarding

claims of discrimination based on race. Informal efforts to resolve

complainant's concerns were unsuccessful. On February 26, 1999,

complainant filed a formal complaint.

The agency framed complainant's claims as follows: On January 15, 1998,

complainant was discriminated based on her race when the postmaster

forced her to submit a resignation in conjunction with continued verbal

harassment and a hostile work environment.

On March 26, 1999, the agency issued a FAD, dismissing the complaint

for untimely Counselor contact. Specifically, the agency indicated that

complainant contacted the Counselor on January 19, 1999, more than a year

after the alleged incident and beyond the forty-five day time limitation

period. On appeal, complainant claims that she contacted the APWU Union

Official in December 1998, where he told her of the forty-five (45) day

time limitation. Complainant claims that any signs that were posted,

regarding Counselor contact time limitation, were present after the

postmaster had left the office. Complainant claims that the postmaster

would rip the posters off of the walls. The agency does not respond to

complainant's arguments on appeal.

The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999) (to be

codified and hereinafter referred to as 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 Howard v. Department of the Navy, EEOC Request

No. 05970852 (February 11, 1999). Thus, the time limitation is not

triggered until a complainant reasonably suspects discrimination, but

before all the facts that support a charge of discrimination have become

apparent.

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.

In its final decision, the agency determined that complainant's complaint

was comprised of the claim that complainant was discriminated on the

basis of race when her resignation submitted on January 15, 1998,

was forced by the postmaster, due to continued verbal harassment and a

hostile work environment. The agency also determined that complainant

did not contact an EEO Counselor until January 19, 1999. While the

agency argues that complainant violated the forty-five (45) day time

limitation in contacting an EEO Counselor over a year after the incident,

complainant claims that posters containing information about the EEO

complaint process were torn down by the postmaster, who she also alleges

forced her resignation. Complainant asserts that the first time that

she was made aware of the forty-five day time limitation was when she

contacted the APWU Union Official in December 1998.

Given the circumstances of this case, the Commission determines that it

is unable to ascertain whether complainant was apprised of the limitation

period for making timely contact with an EEO counselor in December 1998;

or whether complainant was informed of the necessity of contacting an EEO

Counselor at some earlier date. Accordingly, the agency's decision to

dismiss complainant's complaint for failure to contact an EEO Counselor

in a timely fashion is VACATED. Complainant's complaint is REMANDED to

the agency for further processing in accordance with the ORDER below.

ORDER

The agency is ORDERED to conduct a supplemental investigation to

ascertain whether complainant had been informed of the necessity for

initiating contact with an EEO Counselor, the time limits for doing so,

and when and how complainant had been so informed. Thereafter, the agency

shall issue a final agency decision or notify complainant that the agency

is processing her complaint. The supplemental investigation and issuance

of the final decision or notice of processing must be completed within

thirty (30) calendar days of the date this decision becomes final.

A copy of the agency's new final decision or notice of processing must

be sent to the Compliance officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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)(Supp. V 1993). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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); 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 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION

(R0400)

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, Acting Director

Office of Federal Operations

July 26, 2000

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

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.