0120111890
09-07-2012
Joan M. LaBonty, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Joan M. LaBonty,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120111890
Agency No. 4J-530-0023-11
DECISION
Complainant filed an appeal with this Commission from the Agency's decision dated January 21, 2011, dismissing her complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Letter Carrier at the Agency's North Milwaukee Post Office in Milwaukee, Wisconsin. Complainant filed a formal complaint dated January 4, 2011, alleging that the Agency subjected her to discrimination on the bases of disability (neck/back) and in reprisal for protected EEO activity when: on June 22, 2010, Complainant's Supervisor asked her to train the Supervisor on the job Complainant had been performing.1
In a final decision dated January 21, 2011, the Agency dismissed Complainant's claim alleging that she was subjected to discrimination when on June 22, 2010, Complainant's Supervisor asked her to train the Supervisor on the job Complainant had been performing. Specifically, the Agency dismissed this claim pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. Alternatively, the Agency stated that Complainant's complaint should be dismissed pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim.
On appeal, Complainant reiterates that the NRP was unlawful and targeted her because of her disability by substantially reducing her work hours. Complainant also asserts that the Agency intentionally failed to engage her in the required interactive process during the NRP. Additionally, Complainant states she was unaware of any time limit for contacting an EEO counselor and unaware of any EEO poster at the North Milwaukee Post Office Facility.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) provides that the agency shall dismiss a complaint that fails to comply with the applicable time limits contained in � 1614.105, unless the agency extends the time limits in accordance with � 1614.604(c). 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 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action.
EEOC regulations provide that the agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission.
The record discloses that the alleged discriminatory event occurred at the latest on June 22, 2010, but Complainant did not initiate contact with an EEO Counselor until November 24, 2010, which is beyond the applicable limitation period. Complainant claimed that she was unaware of the time limit for contacting an EEO Counselor. However, the record discloses that EEO Poster 72 displaying the requisite counselor contact information was on display at Complainant's worksite during the relevant time frame. Based on a careful review of the record, the Commission finds that Complainant had constructive knowledge of the time limits at issue herein and failed to timely initiate counselor contact. On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact.
CONCLUSION
Accordingly, the Agency's final decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 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. 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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
9/7/12
__________________
Date
1 Complainant also claimed that she was subjected to discrimination based on her disability and in reprisal for protected EEO activity when: on November 12, 2010, her work hours were reduced. The Agency determined that this portion of the complaint fell within a pending class complaint, McConnell et al. v. United States Postal Service, Agency No. 4B-140-0062-06. The Agency informed Complainant that her claim concerning her work hours being reduced based on disability due to the National Reassessment Process (NRP) will be processed separately under the original Case No. 4J-530-0010-11, and will be held in abeyance pending adjudication of the McConnell complaint.
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01-2011-1890
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120111890