Terri L. Nichols, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 16, 2000
01995083 (E.E.O.C. May. 16, 2000)

01995083

05-16-2000

Terri L. Nichols, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Terri L. Nichols, )

Complainant, )

)

v. ) Appeal No. 01995083

) Agency No. 4-D-270-0045-99

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

______________________________)

DECISION

The Commission finds that the agency's decision dated May 14, 1999,

dismissing complainant's complaint due to untimely EEO contact is

proper pursuant to the regulation set forth at 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> In her complaint, complainant alleged

that on December 18, 1995, she was denied a limited duty assignment.

Complainant also alleged that on December 7, 1998, she learned that

another employee was granted a limited duty assignment for a period of

up to two years while awaiting a decision of his injury claim, whereas

she was allegedly refused such although she had an accepted workers'

compensation claim. Complainant contacted an EEO Counselor with regard

to the alleged matter on December 7, 1998, which was beyond the 45-day

time limit after the alleged incident of December 18, 1995.

The Commission has adopted a �reasonable suspicion� standard (as opposed

to a �supportive facts� standard) to determine when the limitation period

is triggered under the EEOC Regulations. See 29 C.F.R. � 1614.105(a)(2);

Ball v. United States Postal Service, EEOC Request No. 05880247 (July 6,

1988). Thus, the limitations period is not triggered until a complainant

should reasonably suspect discrimination, but before all the facts that

would support a charge of discrimination have become apparent.

After a review of the record, the Commission finds that complainant had

or should have had a reasonable suspicion of discrimination concerning

the alleged matter at the time when the alleged discriminatory incident

occurred or during the relevant time period. The record indicates that

on October 24, 1995, complainant received a letter from the Office of

Workers' Compensation Program (OWCP) accepting her claim and indicating

that she could work on limited duty as a result of her knee condition.

On November 30, 1995, complainant's physician also certified that she was

able to return to work with certain physical restrictions. The Commission

finds that complainant should have suspected the alleged discrimination

on or around December 18, 1995, when she was allegedly denied limited

duty in spite of the recommendations made by the OWCP and her physician.

The record also indicates that complainant, previously, filed a formal

complaint in May 1990, for a previous denial of limited duty by the

agency. Thus, the Commission finds that complainant's December 7,

1998 EEO contact with regard to the alleged matter was untimely.

Accordingly, the agency's decision is 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 16, 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 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.