01980186
05-12-2000
Phyllis N. Matlack, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Phyllis N. Matlack v. United States Postal Service
01980186
May 12, 2000
Phyllis N. Matlack, )
Complainant, )
)
v. ) Appeal No. 01980186
William J. Henderson, ) Agency No. 4-C-450-0056-97
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal with this Commission from an
agency decision dated July 9, 1997 dismissing her complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1>
The regulation set forth at 64 Fed. Reg. 37, 644, 37,656 (1999) (to
be codified and hereinafter referred to as 29 C.F.R. � 1614.107(b))
provides that where an agency decides that some but not all of the
claims in a complaint should be dismissed, the agency shall notify
the complainant of its determination; however this determination is not
appealable until final action is taken on the remainder of the complaint.
Based on recent correspondence from the agency, it appears that the
remainder of the claim was the subject of a final decision issued on
June 8, 1998.<2> Therefore, we shall issue a decision on the remaining
claims in the complaint. In her complaint, complainant alleged that
she was subjected to discrimination on the basis of physical disability
(left shoulder fibromyalgia) when:
Since July 1991, complainant has been required to work a split shift
for six days a week and 5.5 hours per day;
On October 29, 1993, the agency did not honor Article 13 of the Postal
contract when complainant was ordered to report for a Fitness-For-Duty
examination;
Sometime in the fall of 1996, and on the week of February 3, 1997,
and the week of February 8, 1997, complainant's scheduled time was
changed, which was a violation of Article 8, Section 8;
On unspecified date(s) management has not provided complainant with
a copy of her written duty assignment;
On December 19, 1996, complainant requested a copy of the examination
report cited in issue number two, but did not receive the report until
January 14, 1997;
By letter dated February 19, 1997, complainant requested access to her
personnel files, and to date, has not been allowed to review them; and
On February 20, 1997, a Rural Carrier Associate was told to wait and
run express mail while complainant was told to leave.
The agency dismissed claims (2), (5), and part of claims (1) and
(3) pursuant to the regulation set forth at 64 Fed. Reg. 37,644,
37,656 (1999)(to be codified and hereinafter referred to as 29 C.F.R. �
1614.107(a)(2)), for untimely EEO Counselor contact.<3> The agency stated
that complainant did not contact an EEO Counselor until February 12,
1997, approximately five years and seven months after claim (1)( July
1991), three years and four months after claim (2)(October 29, 1993),
four months after claim (3)(fall 1996), and fifty-five (55) days after
claim (5)(December 19, 1996). In addition, the agency also dismissed
claim (5) pursuant to the regulation set forth at 64 Fed. Reg. 37,644,
37,656 (1999)(to be codified and hereinafter referred to as 29 C.F.R. �
1614.107(a)(1)), for failure to state a claim. Specifically, the agency
noted that complainant stated that she received the requested report less
than a month after her request. Thus, the agency found that complainant
failed to prove that she suffered a loss or harm to a term, condition,
or privilege of employment as a result of an agency action.
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 the present case, we find that the agency properly dismissed claims
(1), (2), and (3) on the grounds of untimely EEO Counselor contact.
We find that complainant presents no evidence to show that she was
not aware of the alleged discriminatory agency actions at the time
they occurred. The record discloses that the split shift occurred in
July 1991 and continued until December 1997, a period of five years and
seven months, yet complainant did not initiate EEO Counselor contact
until February 12, 1998. In addition, the Fitness-For-Duty examination
occurred on October 29, 1993, almost three years and four months prior to
complainant's counselor contact. As complainant has not shown that she
did not know and reasonably should not have known that the discriminatory
matter occurred prior to February 12, 1998, we find that complainant's
EEO Counselor contact was untimely.
With regard to claim (5), we find that the agency properly dismissed
this claim on the grounds that complainant failed to state a claim.
Complainant stated that she requested the examination report in December
1996, but did not receive a copy of the report until January 1997.
We find that complainant failed to show that she suffered a harm to a
term, condition, or privilege of employment as a result of the delay in
receiving the report.
Accordingly, the agency's decision to dismiss claims (2), (5), and part
of claims (1) and (3) was proper and is AFFIRMED.
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 (S0400)
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:
May 12, 2000
__________________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the 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.
2Our records indicate that complainant appealed the agency's June 8,
1998 decision. The Commission will address this appeal in EEOC Appeal
No. 01990388.
3The agency accepted part of claim (1) where complainant alleged that
since December 29, 1996, complainant has been required to work a split
shift for six days a week and 5.5 hours per day; and part of claim (3)
where complainant alleged that on the week of February 3, 1997, and
the week of February 8, 1997, complainant's scheduled time was changed,
which was in violation of Article 8, Section 8.