Vicki D. Clute, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 20, 1999
01993209 (E.E.O.C. Oct. 20, 1999)

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