0120091136
05-27-2010
Joyce T. Jackson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Joyce T. Jackson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120091136
Agency No. 1H301007308
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 30, 2008, 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. � 621 et seq. Upon review, the Commission
finds that complainant's complaint was properly dismissed pursuant to
29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact.
In her complaint, complainant1 alleged that she was subjected to
discrimination on the bases of race (African-American), national origin
(Liberia), sex (female), disability (depression), age (55), and reprisal
for prior protected EEO activity [under Title VII] concerning her Notice
of Separation dated February 16, 2007.2
Dismissal
The agency found as follows: on June 26, 2008, the agency processed
and mailed to complainant a Notification of Personnel Action, which
indicated that complainant's last day in a pay status was March 15, 2007.
According to the agency, complainant was untimely, in that she waited
until September 4, 2008 before contacting an EEO Counselor.
The Dismissal letter additionally noted that an affidavit in the record
indicates that an EEO poster was on display at complainant's work location
in an area that is both accessible and visible to all employees. This
poster instructed individuals who believe they have been discriminated
against to contact an EEO Counselor within 45 calendar days of the date
of the matter.3
The Dismissal letter additionally found that to the extent that
complainant alleged that the union improperly handled her grievance,
it is improper for complainant to lodge a complaint pertaining to the
union in the EEO forum. The Dismissal letter noted that the Collective
Bargaining Agreement between the parties contains a negotiated grievance
procedure (Article 15) for addressing such concerns and thus affords
complainant due process for alleged violations of the agreement.
On appeal, complainant, through counsel, contends that numerous events
occurred after she was issued the February 16, 2007 notice of separation.
Notably, on June 26, 2008, the agency issued complainant a PF-50
terminating her employment effective July 31, 2007 (for inability to
perform the functions of her position) and cancelling her prior upgrade
to PS-06.
Complainant contends that she did not reasonably suspect discrimination
until August 2008, when she perceived that there were irregularities in
her communications with the union, and she lost confidence in her union
representation. She states that at this point she began to suspect
that the union was actually cooperating with the agency to complete
the termination of her employment. Complainant contends that she then
sought EEO counseling on September 4, 2008. In response to the appeal,
the agency contends that the dismissal of the complaint was appropriate,
and asks the Commission to affirm its dismissal.
Although complainant explains that she did not reasonably suspect that
the union was cooperating with the agency until August 2008, she has not
shown that she did not reasonably suspect the agency of discrimination
until August 2008. The essence of her argument is that she did not
realize the union was failing to properly represent her until August
2008 when she had certain interactions with union officials. However,
there is no indication that she suddenly had reason to believe (for the
first time) that agency management was motivated by discrimination until
August 2008.
Giving complainant the benefit of the doubt, and therefore, assuming
complainant's actual termination occurred on June 26, 2008 when the
agency issued complainant a PF-50 terminating her employment effective
July 31, 2007, complainant's September 4, 2008 EEO Counselor contact
would still be beyond the forty-five (45) day limitation period, and
therefore untimely.
On appeal, complainant has presented no persuasive arguments or
evidence warranting an extension of the time limit for initiating EEO
Counselor contact. Accordingly, the agency's final decision dismissing
complainant's complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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 (S0408)
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 (Z1008)
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
_____5/27/10_____________
Date
1 During the relevant time period complainant was not working for
medical reasons.
2 Complainant asserts that she also challenged the February 16, 2007
removal notice by filing a union grievance on or about March 2, 2007.
3 Complainant does not dispute on appeal that an EEO poster was visible
at the agency.
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0120091136
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120091136