01991320
03-15-2000
Toni E. Hansen, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Toni E. Hansen, )
Complainant, )
)
v. ) Appeal No. 01991320
) Agency No. 4-J--460-0187-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Complainant filed an appeal with this Commission from a final decision of
the agency concerning her 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.<1> The final agency decision was received by
complainant on October 27, 1998. The appeal was postmarked November
30, 1998. Accordingly, the appeal is timely (see 64 Fed. Reg. 37,644,
37,659 (1999)(to be codified at and hereinafter referred to as 29
C.F.R. �1614.402(a)).
Complainant contacted an EEO counselor on July 30,1997, regarding
claims of discrimination. Specifically, complainant alleged that she
was discriminated against when:
(1) on November 13, 1996, the Postmaster told her not to take a break;
(2) on November 15, 1996, she received an official discussion;
(3) on November 18, 1996, the Postmaster ordered her to be more
efficient;
(4) on November 19, 1996, the Postmaster ordered her to sort parcels
from the floor;
(5) on December 3, 1996 she received a Letter of Warning; and
(6) on July 30, 1997 the Postmaster took her outside and spoke to her
about being disrespectful.
Informal efforts to resolve complainant's concerns were unsuccessful.
Accordingly, on October 5, 1997, complainant filed a formal complaint
alleging that she was the victim of unlawful employment discrimination
on the basis of sex (female). Complainant's complaint was comprised of
the six claims for which she underwent EEO counseling, discussed above.
On October 27, 1998, the agency issued a final decision dismissing
claims (1), (2), (3), (4) and (5) of complainant's complaint for
failure to timely initiate contact with an EEO Counselor, and claim
(6) for failure to state a claim. Specifically, the agency determined
that complainant's July 30, 1997 counselor contact regarding claims (1)
through (5), which occurred in November and December of 1996, was beyond
the applicable time limit for seeking EEO counseling. The agency also
found that complainant had not been aggrieved by the incident alleged
in claim (6) and therefore, failed to state a claim.
Volume 64 Fed. Reg. 37,644, 37656 (1999) (to be codified and hereinafter
referred to as EEOC Regulation 29 C.F.R. � 1614.107(a)(2)) requires
that complaints of discrimination should be brought to the attention
of the EEO 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 Ball v. USPS, EEOC Request
No. 05880247 (July 6, 1988). 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.
Here, complainant's counselor contact on July 30, 1997 was eight
months after the incidents described in claims (1) (2), (3), (4) and (5)
purportedly occurred. Complainant does not indicate that she was unaware
of the time limitations for counselor contact, nor does she suggest
that she was prevented somehow from timely seeking counseling. However,
through her attorney, complainant contends on appeal that the incidents
described in claims (1) through (5) were provided as background evidence
to aid the agency in fully appreciating the impact of complainant's
claim of discrimination that purportedly occurred on July 30, 1997,
and that has been identified as claim (6). To the extent, however,
that complainant is asserting that claims (1) - (5) are live claims,
the Commission determines that the agency's decision to dismiss these
claims was proper. None of the matters addressed in these claims occurred
within forty-five days of complainant's initial EEO Counselor contact.
As discussed above, complaint has failed to present adequate justification
to extend the limitation period beyond forty-five days.
In 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified at 29
C.F.R. �1614.107(a)(1)), the regulations provide, in relevant part,
that an agency shall dismiss a complaint, or portion thereof, that fails
to state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �1614.103;
�1614.106(a). The Commission's federal sector case precedent has long
defined an "aggrieved employee" as one who suffers a present harm or loss
with respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
Claim (6) of complainant's complaint alleges that she was subjected
to unlawful employment discrimination when on July 30, 1997, the
Postmaster spoke to her about being disrespectful. This Commission
has consistently held that official discussions alone do not render
an employee "aggrieved." See Miranda v. U.S. Postal Service, EEOC
Request No. 05920308 (June 11, 1992); Devine v. U.S. Postal Service,
EEOC Request Nos. 05910268, 05910269 and 05910270 (April 4, 1991). In
the present case, we find no claim by complainant that the discussion
was recorded in any personnel or supervisory files, nor that it can be
used as a basis for any subsequent disciplinary action. Id The agency's
decision dismissing claim (6) for failure to state a claim was proper.
Accordingly, the agency's decision dismissing complainant's complaint
is AFFIRMED for the reasons set forth herein.
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
March 15, 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:
____________
_________________________________
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.