Toni E. Hansen, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 15, 2000
01991320 (E.E.O.C. Mar. 15, 2000)

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.