01970219
01-14-1999
Raynita A. Amos, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Raynita A. Amos v. United States Postal Service
01970219
January 14, 1999
Raynita A. Amos, )
Appellant, )
)
v. ) Appeal No. 01970219
) Agency No. 4C-190-1057-96
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On October 8, 1996, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) dated September 16, 1996, 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. In her complaint, appellant alleged that she was subjected to
discrimination on the bases of race (Black) and sex (female) when:
On December 29, 1995, appellant became aware that she did not receive
a special achievement award;
During December 1995, she called into the office for leave and a PS
Form 3971 was filled out by another employee;
On June 22, 1995, appellant submitted a suggestion and was denied a
$250.00 monetary award;
In June or July 1995, appellant alleged sexual harassment by another
employee; and
On March 4, 1996, appellant was told to report to another work location.
On September 16, 1996, the agency issued a FAD accepting allegation (5)
for investigation, dismissing allegations (1) and (2), pursuant to 29
U.S.C. �1614.107(a), for failure to state a claim, and allegations (3) and
(4), pursuant to EEOC Regulation 29 U.S.C. �1614.107(b), for failure to
initiate contact with an EEO Counselor in a timely manner. With regard
to the allegations dismissed for untimeliness, the agency concluded that
appellant's January 1, 1996 initial EEO Counselor contact occurred more
than forty-five days from the incidents described in allegations (3)
and (4), and was, therefore, untimely.
A careful review of the record discloses that in June or July 1995,
appellant and another individual brought to their supervisor allegations
of sexual harassment by a coworker. In response, the coworker was
suspended from duty; however, as a result of a grievance, on or about
March 1, 1996, the alleged harasser was returned to duty.
On appeal, appellant accepts the agency's decision to dismiss allegations
(1) and (2). However, with regard to allegation (3), appellant argues
that although she submitted her suggestion on June 22, 1995, she did not
suspect that her supervisor's failure to respond to her suggestion was
discriminatory until a white coworker was given an award on or about
December 28, 1995. Regarding allegation (4), appellant contends that
when she and a coworker complained about the alleged sexual harassment,
management immediately suspended the alleged harasser. Thus, appellant
believed that she did not need to file an EEO complaint as the matter
had been rectified. It was only upon the alleged harasser's return to
duty that appellant felt she needed to file an EEO complaint.
As a preliminary matter, the Commission notes that appellant did not
appeal the dismissal of allegations (1) and (2). Accordingly, the
agency's decision to dismiss allegations (1) and (2) is AFFIRMED.
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 Ball v. USPS,
EEOC Request No. 05880247 (July 6, 1988). Thus, the limitations period
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
We find that the agency erred in dismissing allegation (3) for untimely
EEO Counselor contact. In its FAD, the agency improperly tolled the
forty-five-day limitation period from the date appellant submitted her
suggestion. Instead, the limitations period should have been tolled from
the date appellant reasonably suspected that her supervisor's failure to
respond to her suggestion was discriminatory. Appellant further contends
that she did not suspect discrimination until a white coworker was given
an award on or about December 28, 1995. As appellant's January 10,
1996 initial EEO Counselor contact occurred within forty-five days of
when she first suspected discrimination, we find that it was timely.
With regard to allegation (4), we find that dismissal was proper pursuant
to 29 C.F.R. �1614.107(b). The record reflects that on or about June or
July 1995, appellant reasonably suspected that she was being subjected
to sexual harassment, as she complained of the matter to her supervisor.
However, the record further discloses that appellant did not initiate
contact with an EEO Counselor until January 10, 1996, beyond the
limitation period. Appellant's only justification for her untimely
EEO Counselor contact was that she did not feel it necessary to file
an EEO complaint because the alleged harasser was removed as a result
of appellant's complaint to her supervisor. We note, however that the
use of an informal complaint procedure does not excuse appellant from
asserting her EEO rights in a timely manner. See Schermerhorn v. USPS,
EEOC Request No. 05940729 (February 10, 1995)(finding that the use of a
negotiated grievance procedure does not toll the time limit for contacting
an EEO Counselor).
Accordingly, the agency's decision to dismiss allegations (1), (2)
and (4) is AFFIRMED for the reasons set forth herein. The agency's
decision to dismiss allegation (3) is hereby REVERSED. Allegation (3)
is REMANDED to the agency for further processing in accordance with this
decision and the Order below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegation in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegation within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
of the appropriate rights within one hundred fifty (150) calendar days
of the date this decision becomes final, unless the matter is otherwise
resolved prior to that time. If the appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant and a copy
of the notice that transmits the investigative file and notice of rights
must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503(a). The appellant 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 29 C.F.R. ��1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant 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. ��1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
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 (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
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. 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. 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:
Jan 14, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations