Rena Thomas, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 29, 1999
01980690 (E.E.O.C. Jan. 29, 1999)

01980690

01-29-1999

Rena Thomas, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Rena Thomas v. United States Postal Service

01980690

January 29, 1999

Rena Thomas, )

Appellant, )

)

v. ) Appeal No. 01980690

) Agency No. 1-F-941-0115-97

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

The Commission finds that the agency erred in its October 3, 1997 final

decision (FAD) dismissing appellant's formal EEO complaint on the basis of

untimely EEO counselor contact, regarding her removal for poor attendance

and falsification of her employment application. In its final decision,

the agency found that although appellant received the notice of removal

on October 1, 1996, she did not seek EEO counseling until June 12, 1997.

The agency further found that even if appellant did not receive the

notice on that date, by being in a non-pay status she should have had

a reasonable suspicion that discrimination against her was taking place.

Notwithstanding the agency's finding, a review of the record shows

that a Removal Notice dated September 30, 1996, informed appellant

that she would be removed from her position effective October 7, 1996.

The record contains a certified mail return receipt which states "placed

in mailbox ... 10-1-96". It does not show, however, that appellant or a

member of her household actually received and signed the return receipt.

On appeal, appellant contends that she never received the notice of

removal because she had moved to a different address in March 1996.

Appellant further claims that she "had been off from work for maternity

reasons from the period of June 1996 through June 1997".

The Commission has held that where there is an issue of timeliness,

the agency always bears the burden of obtaining sufficient information

to support a reasoned determination as to timeliness. Williams

v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992).

Concerning appellant's complaint, the agency has not met its burden.

The Commission applies a "reasonable suspicion" standard to the triggering

date for determining the timeliness of the contact with an EEO counselor.

Cochran v. United States Postal Service, EEOC Request No. 05920399 (June

18, 1992). Under this standard, the time period for contacting an EEO

counselor is triggered when the complainant should reasonably suspect

discrimination, but before all the facts that would support a charge

of discrimination may have become apparent. Id.; Paredes v. Nagle,

27 FEP Cases 1345 (D.D.C. 1982).

In the present case, we find that, although the FAD averred that a

notice of removal was received by appellant on October 1, 1996, the

agency has offered no evidence to support such an assertion. Moreover,

appellant claims that because she was in a nonpay status as a result of

her maternity leave during the period in question, she did not suspect

discrimination. Accordingly, the Commission hereby REVERSES the FAD's

dismissal of appellant's complaint for untimely EEO counselor contact.

Appellant's complaint is hereby REMANDED for further processing consistent

with this decision and applicable regulations. The parties are advised

that this decision is not a decision on the merits of appellant's

complaint.

ORDER (E1092)

The agency is ORDERED to process the remanded allegations in accordance

with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant

that it has received the remanded allegations 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 acknowledgement 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. �l6l4.604(c).

RIGHT TO FILE A CIVIL ACTION (R0993)

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. 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.

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:

January 29, 1999

DATE Ronnie Blumenthal, Director

Office of Federal Operations