01992914
11-08-1999
Rosalind R. LittleJohn, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service (SE/SW Area), Agency.
Rosalind R. LittleJohn, )
Appellant, )
)
v. ) Appeal No. 01992914
) Agency No. 1-H-328-0019-99
William J. Henderson, )
Postmaster General, )
United States Postal Service )
(SE/SW Area), Agency. )
______________________________)
DECISION
On February 25, 1999, appellant filed a timely appeal with this
Commission from a final agency decision (FAD) issued on February 2,
1999, pertaining to a 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. The Commission accepts appellant's appeal in
accordance with EEOC No. 960.001 as amended.<1>
The record reflects that on October 27, 1998, appellant initiated contact
with an EEO Counselor. During the counseling period, appellant alleged
that on October 14, 1997 her supervisor denied her transfer request.
Appellant also alleged that on September 18, 1998 her supervisor
subsequently refused to provide the union with documentation pertaining
to the denial of transfer.
On December 24, 1998, appellant filed a formal complaint, alleging that
she was the victim of unlawful employment discrimination on
the basis of gender (female). Appellant's complaint was comprised of
the matter in which she underwent EEO counseling for, discussed above.
On February 11, 1999, the agency issued a final decision, dismissing
appellant's complaint for failure to initiate timely contact with an
EEO Counselor. The agency found that the alleged discriminatory event
occurred on October 14, 1997 when appellant's transfer request was denied.
Thus, appellant's initial EEO Counselor contact on October 27, 1998,
was more than forty-five days after the matter raised in the allegation
purportedly occurred.
On appeal, appellant acknowledges that her EEO Counselor contact was
untimely but, argues that she was not aware or made aware of her rights
to file an EEO complaint. Therefore, the forty-five day limitation
should be extended.
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 case at bar, appellant has offered no evidence that she was
unaware of her rights to file an EEO complaint, ie; management failed
to post in visible areas employee rights and obligations when filing
EEO complaints or that she was intentionally misled by someone within
the agency as to her right to file an EEO complaint. Based upon the
foregoing, appellant has failed to articulate adequate justification
pursuant to 29 C.F.R. �1614.105(a)(2), for extending the limitation
period beyond the forty-five days. Accordingly, the agency's decision
to dismiss appellant's complaint for failure to initiate contact with
an EEO Counselor in a timely fashion was proper and is AFFIRMED.
Furthermore, the agency, in their FAD, failed to address appellant's
second allegation that she was discriminated against when her supervisor
refused to provide documentation to the union. Therefore, the Commission,
on its own, will adjudicate this matter. Accordingly, the second
allegation fails to state a claim and therefore is also dismissed.
More appropriately, appellant should have presented this matter to a
grievance committee.
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 (S0993)
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:
November 8, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
1Since the agency did not supply a copy of a certified mail
return receipt or any other material capable of establishing
the date appellant received the agency's final decision, the
Commission presumes that appellant's appeal was filed within
thirty (30) days of receipt of the agency's final decision. See,
29 C.F.R. �1614.402.