01a10713_r
03-22-2002
Pamela A. Collins, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Pamela A. Collins v. United States Postal Service
01A10713
March 22, 2002
.
Pamela A. Collins,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A10713
Agency No. 4J-600-0046-99
DECISION
Upon review, the Commission finds that the agency's decision dated
October 24, 2000, dismissing complainant's complaint due to untimely EEO
Counselor contact is proper pursuant to 29 C.F.R. � 1614.107(a)(2).<1>
In her complaint, complainant alleged that on or about July 27, 1998,
she was denied a detail to the level 6 position. Complainant contacted
an EEO Counselor with regard to her complaint on November 4, 1998,
which was beyond the 45-day time limit set by the regulations. The
Commission has adopted a �reasonable suspicion� standard (as opposed to a
�supportive facts� standard) to determine when the limitation period is
triggered under the EEOC Regulations. See 29 C.F.R. � 1614.105(a)(2);
Ball v. United States Postal Service, EEOC Request No. 05880247
(July 6, 1988). Thus, the limitations period is not triggered until
a complainant reasonably should have suspected discrimination, but
before all the facts that would support a charge of discrimination have
become apparent. Here, complainant clearly indicated in her affidavit
that after she was informed of management's decision not to detail her
due to her attendance, she unsuccessfully tried to resolve the matter
through her union steward and management. The agency, undisputed by
complainant, stated in its decision that management's decision to select
an identified employee for the alleged detail was decided prior to June
1998, and that employee was placed into the subject detail assignment
on June 1, 1998, which ended on October 7, 1998. Thus, the Commission
finds that complainant knew or reasonably should have suspected the
alleged discrimination in or around June 1998, or on or around July 27,
1998, as she indicated in her complaint. Furthermore, the Commission
has held that the internal appeal of an agency action does not toll the
running of EEO time limitations. See Hosford v. Veterans Administration,
EEOC Request No. 05890038 (June 9, 1989).
On appeal, complainant contends that her EEO Counselor contact was timely
since she did not suspect the alleged discrimination until October 9,
1998, when she was informed that the reason for the alleged denial was
due to her attendance problems. However, complainant clearly indicated in
her affidavit that two days after she applied, or expressed her interest,
for the detail, she was informed that she was not �selected for the
position because of [her] attendance.� Thus, the Commission finds
that complainant fails to present adequate justification to warrant an
extension of the applicable time limit for contacting an EEO Counselor.
Accordingly, the agency's decision is AFFIRMED.
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 (S0900)
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. 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 (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
March 22, 2002
__________________
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
______________________________
1It is noted that complainant previously requested a hearing before an
EEOC Administrative Judge (AJ). By letter dated May 2, 2000, the AJ,
granting complainant's subsequent request to temporarily withdraw
her hearing request due to her representative's surgery, instructed
the agency to issue a final decision if complainant did not renew her
request for a hearing, which she did not, within one hundred and twenty
(120) days from the date of the letter.