01992761
02-10-2000
Teresa L. Boyd, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Teresa L. Boyd, )
Complainant, )
)
v. ) Appeal No. 01992761
) Agency No. I-I-642-0006-99
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On February 17, 1999, complainant filed a timely appeal with this
Commission from a final agency decision (FAD), dated January 22, 1999,
dismissing her complaint for untimely counselor contact and for raising
a matter that has not been brought to the attention of a counselor.<1>
The Commission accepts the appeal in accordance with EEOC Order No. 960,
as amended.
On November 13, 1998, complainant contacted the EEO office regarding
allegations of discrimination based on race (White). Informal efforts
to resolve complainant's concerns were unsuccessful. Accordingly,
on December 28, 1998, complainant filed a formal complaint.
The agency issued a FAD, which framed complainant's claims as follows:
On January 16, 1998, complainant received a letter denying her temporary
transfer out of her unit. Further, complainant alleged that she was
being moved from her assignment.
The FAD dismissed the transfer claim for untimely counselor contact.
According to the agency, complainant should have contacted an EEO
counselor by March 2, 1998, but she did not do so until November 13, 1998.
The FAD indicated that EEO posters, describing the forty-five day time
limits, were on display and therefore complainant knew or should have
known about the limitations. The agency also dismissed complainant's
assignment claim, stating that she had not been counseled on the issue.
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 instant case, the Counselor's Report states that the alleged
discriminatory event occurred on January 16, 1998 and complainant's
initial contact was on November 13, 1998. Further, the record contains a
copy of a January 16, 1998 letter notifying complainant that her transfer
request was denied. Therefore, the Commission finds that complainant's
counselor contact was well beyond the forty-five day time limitation.
Complainant presents no contentions on appeal. In the absence of a
sufficient reason for extending the time limitation, we find that the
agency properly dismissed the transfer claim for untimely counselor
contact.
Regarding complainant's claim that she was being moved from her
assignment, the FAD dismissed the issue for failing to receive
counseling on the issue. 64 Fed. Regulation. 37,644, 37,656 (1999)(to
be codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(2)) states,
in pertinent part, that an agency shall dismiss a complaint or portion
thereof which raises a matter that has not been brought to the attention
of an EEO Counselor, and is not like or related to a matter on which
the complainant has received counseling. A later claim or complaint
is "like or related" to the original complaint if the later claim or
complaint adds to or clarifies the original complaint and could have
reasonably been expected to grow out of the original complaint during the
investigation. See Scher v. United States Postal Service, EEOC Request
No. 05940702 (May 30, 1995); Calhoun v. United States Postal Service,
EEOC Request No. 05891068 (March 8, 1990). Here, the Commission finds
that the assignment issue does not add to or clarify the transfer claim.
Therefore, the claim was properly dismissed by the agency.
Accordingly, the agency's dismissal of complainant's complaint was proper
and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
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:
February 10, 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 Equal Employment Assistant
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.