01993209
10-20-1999
Vicki D. Clute, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Vicki D. Clute v. United States Postal Service
01993209
October 20, 1999
Vicki D. Clute, )
Appellant, )
)
v. ) Appeal No. 01993209
) Agency No. 4E-800-0304-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant 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. The final agency decision was received by
appellant on February 4, 1999. The appeal was postmarked March 1, 1999.
Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)), and is
accepted in accordance with EEOC Order No. 960, as amended.
Appellant contacted an EEO Counselor on July 6, 1998, regarding
allegations of discrimination. Specifically, appellant alleged that
she was discriminated against when:
(1) on January 17, 1998 she learned that a less qualified male employee
was selected for the position of Manager Customer Service Operations,
EAS-22; and
(2) on July 4, 1998 she learned that a less qualified male employee was
selected for the position of Station Manager, Templeton, EAS-22.
Informal efforts to resolve appellant's concerns were unsuccessful.
Accordingly, on October 2, 1998, appellant filed a formal complaint
alleging that she was the victim of unlawful employment discrimination
on the basis of sex.
On February 1, 1999, the agency issued a final decision (FAD) accepting
for investigation allegation (2) of appellant's complaint but dismissing
allegation (1) for failure to timely initiate contact with an EEO
Counselor. Specifically, the agency determined that appellant's July 6,
1998 EEO contact regarding her non-selection in January 1998 was beyond
the applicable time limitation for counselor contact. The agency also
determined that appellant's allegation did not constitute a continuing
violation. The agency found that appellant had a reasonable suspicion of
discrimination prior to her EEO contact on July 6, 1998. Finally, the
agency indicates that EEO posters containing relevant time limitations
are on display at appellant's workplace.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) 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 appellant's EEO contact on July 6, 1998 was 171 days after she
learned on January 17, 1998 that she had not been selected for the
position described in allegation (1). Appellant 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, appellant contends on appeal
that allegation (1) regarding her non-selection is part of a continuing
practice of discrimination on the part of the agency. Appellant asserts
that she was unable to appreciate that she was being discriminated
against until July 4, 1998 when she learned that the agency again failed
to select her for the position of Station Manager, Templeton, EAS-22.
Upon review, the Commission finds that appellant initially contacted
an EEO Counselor on July 6, 1998. Further, the Commission finds that
appellant should have had a reasonable suspicion of discrimination
when she learned on January 17, 1998 that she was denied the position
of Station Manager, and had forty-five days to contact a Counselor
regarding the denial. It is well-settled that the denial of a promotion
is an incident that has the degree of permanence which should trigger
an employee's duty to assert her rights. See Anvari v. Department of
Health and Human Services, EEOC Request No. 05930157 (June 17, 1993);
Jackson v. U.S. Air Force, EEOC Request No. 05950780 (June 27, 1997).
In addition, we find that allegation (1) is untimely under the continuing
violation theory. In applying the continuing violation theory, one
consideration is whether a complainant had prior knowledge or suspicion of
discrimination and the effect of this knowledge. See Sabree v. United
Brotherhood of Carpenters & Joiners Local No. 33, 921 F.2d 396 (1st
Cir. 1990). The Commission described Sabree as holding that a plaintiff
who believed she had been subjected to discrimination had an obligation
to file promptly with the EEOC or lose her claim, as distinguished from
the situation where a plaintiff is unable to appreciate that she is being
discriminated against until he experienced a series of acts and is thereby
able to perceive the overall discriminatory pattern. Hagan v. Department
of Veterans Affairs, EEOC Request No. 05920709 (Jan. 7, 1993).
Regarding allegation (1), appellant should have reasonably suspected
discrimination concerning her non-selection more than forty-five days
prior to her initial contact with an EEO Counselor. We find therefore
that the agency's decision dismissing allegation (1) was proper.
The Commission is not persuaded by appellant's assertions on appeal that
she was unable to appreciate the agency's discriminatory conduct without
the supportive facts of which she alleges she became aware only after the
second non-selection in July 1998, which is the subject of allegation
(2). Accordingly, the agency's decision dismissing allegation (1) on
the grounds of untimely EEO Counselor contact is hereby AFFIRMED for
the reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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:
10/20/1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations