Frida C,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.Download PDFEqual Employment Opportunity CommissionNov 6, 20180120182092 (E.E.O.C. Nov. 6, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Frida C,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 0120182092 Agency No. 1J-603-0040-18 DECISION Complainant filed this appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated May 23, 2018, dismissing her complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as a Mail Processing Clerk at the Agency’s Post Office in Carol Stream, Illinois.2 On March 28, 2018, Complainant initiated contact with an EEO Counselor. The parties could not resolve the matter informally. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2 The record contains a PS Form-50 (Notification of Personnel Action), reflecting that Complainant voluntarily retired from Agency employment effective December 29, 2016. 2 0120182092 On May 11, 2018, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination based on race when: On a date not specified in March 2010, Complainant was not accommodated, per her medical restrictions and was sent home. The Agency dismissed the formal complaint for failure to comply with applicable time limits pursuant to 29 C.F.R. § 1614.107(a)(2). Specifically, the Agency concluded that following the allegedly discriminatory incident of March 2010, Complainant did not contact the EEO Counselor until March 28, 2018. The instant appeal followed. In appealing, Complainant has asserted that her EEO Counselor contact was timely. Complainant’s appellate brief explained that she had been a member of an EEO class action case contesting the Agency’s National Reassessment Process. According to the EEO Counselor’s report, Complainant had stated the reason she waited so long to file this individual EEO complaint was because she had previously been a part of the group of employees who had filed an EEO class action complaint. As part of her appeal Complainant submitted two pages that were labeled workers’ compensation reports and a hand-written note from her doctor recommending duty limitations. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires bringing complaints of discrimination to the attention of the EEO Counselor within forty-five days of the date of the matter alleged to be discriminatory or, within forty-five days of the effective date of a personnel action. If a complainant showed that she was unaware of the time limit, that she did not know that the discriminatory action had occurred, that circumstances beyond her control prevented contacting the EEO Counselor, or if she provided a reason deemed sufficient, then EEOC or the Agency must toll that time limit. See 29 C.F.R. § 1614.105(a)(2). Here, upon careful review, we find that Complainant’s medical documents, or her appellate arguments regarding inclusion as a member a class action complaint or her involvement in the Agency’s National Reassessment Process were not sufficient reasons to warrant an extension of the applicable time limit for contacting an EEO Counselor. Absent her bare appellate assertions, Complainant has not articulated how the National Reassessment Process, any class action complaint or disabling conditions otherwise prevented her from timely EEO Counselor contact. Moreover, Complainant provides no argument suggesting that she was not aware of the applicable time limit. See McCurry v. U.S. Postal Serv., EEOC Appeal No. 0120102770 (May 24, 2012). 3 0120182092 CONCLUSION We AFFIRM the dismissal of Complainant’s complaint pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO Counselor contact. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 29 C.F.R. § 1614.604. The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (S0610) 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. 4 0120182092 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations November 6, 2018 Date Copy with citationCopy as parenthetical citation