01994066
05-25-2000
Tammy Henry, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Tammy Henry, )
Complainant, )
)
v. ) Appeal No. 01994066
) Agency No. 4-G-780-0059-99
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
The Commission finds that the agency's March 25, 1999 decision dismissing
the complaint on the basis of untimely EEO counselor contact is proper
pursuant to the provisions of 64 Fed. Reg. 37,644, 37,656 (1999) (to be
codified and hereinafter referred to as 29 C.F.R. �1614.107(a)(2)).<1>
The record shows that Complainant sought EEO counseling on October 27,
1998, claiming that she had been discriminated against on the bases of
race, color, and sex when she was not hired for a Part Time Flexible
(PTF) Mail Processor position after being interviewed on March 19, 1998.
Subsequently, Complainant filed a formal complaint concerning this issue.
The agency issued a final decision dismissing the complaint on the grounds
of untimely EEO counselor contact after finding that Complainant sought
EEO counseling �some seven months after the incident�. The agency further
found that Complainant had been employed by the agency from August 11,
1995 to June 4, 1996 and that she had been �provided information on EEO
rules and regulations as part of the training for new employees during
[her] orientation period�. The agency also provided a copy of the EEO
posters that are found at Complainant's former place of employment at
the Austin, Texas General Mail Facility (GMF).
On appeal, Complainant contends that she was unaware of the 45-day time
limit because �filing deadline requirements are not easily understood
since I have not been employed by the U.S. Postal Service for a period
exceeding two years. Although EEO posters are available within the
service, I have no excess [sic] to them. My last date of employment
was June 4, 1996".
The Commission has held that to establish constructive notice an
agency must post EEO information containing notice of the time limits
for EEO counselor contact and provide independent evidence of record
supporting such. Pride v. United States Postal Service, EEOC Request
No. 05930134 (August 19, 1993). We find that the information on record,
concerning the EEO posters that are posted at the Austin, Texas GMF,
is sufficient to establish constructive notice of the 45-day time limit
for EEO counselor contact by Complainant, who worked at said facility
from 1995 to June 4, 1996. Moreover, Complainant failed to show that
she had not been provided with training on EEO rules and regulations,
as the agency determined in its final decision.
Accordingly, the final agency decision was proper and is hereby 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 25, 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 after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
______ _________________________________
1 On 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.