0120102453
09-16-2010
Kimberly A. Keenan, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Northeast Area), Agency.
Kimberly A. Keenan,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Northeast Area),
Agency.
Appeal No. 0120102453
Agency No. 4B-117-0033-10
DECISION
Complainant filed an appeal with this Commission from the Agency's decision dated April 19, 2010, 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
During the relevant time, Complainant was employed a Distribution Window Clerk at the Agency's Stony Brook Post Office in Stony Brook New York. Complainant filed a complaint dated March 23, 2010, alleging that she was subjected to discrimination based on disability (post partum disability) when: on November 7, 2009, Complainant was forced to resign and excluded from the Agency's $15,000 early out incentive.
The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. The Agency noted that Complainant did not make initial EEO contact until February 24, 2010, which was more than 45 days after Complainant was forced to resign on November 7, 2009, and was excluded from the early out incentive. Alternatively, the Agency determined Complainant's complaint should be dismissed pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. Specifically, the Agency noted that on October 20, 2009, Complainant was issued a Proposed Notice of Separation Disability. The Agency stated Complainant subsequently filed a grievance which resulted in the rescission of the Proposed Notice of Separation Disability, and the agreement that Complainant would resign by November 10, 2009. The Agency claimed that the proper forum for Complainant to raise challenges to the grievance settlement was within the negotiated grievance procedure and not in the EEO process.
On appeal, Complainant claims she was not aware of the time frame for initiating EEO Counselor contact. Complainant states she was not aware that the Agency was offering a $15,000 incentive until November 2009, when she called the union and was advised by the union to resign instead of being separated from the Agency.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity 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 Howard v. Dep't of the Navy, EEOC Request No. 05970852 (February 11, 1999). 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.
The record contains an affidavit from the Postmaster at the Stony Brook Post Office stating that "EEO Poster 72" has been on display at Stony Brook since her arrival at the post office in May 2006. Postmaster's Affidavit. The Postmaster noted that relevant to this complaint, "EEO Poster 72's" are posted on the employee bulletin board located by the entrance to the employee lunch room and in a locked bulletin board adjacent to the time clock at the employee entrance. Id. The Postmaster noted that "EEO Poster 72" advises employees of the time requirements for timely filing an EEO counseling request and the telephone number to contact to request EEO counseling. Id.
The record discloses that the alleged discriminatory event occurred at the latest on November 7, 2009, but Complainant did not initiate contact with an EEO Counselor until February 24, 2010, which is beyond the 45-day limitation period. By producing the affidavit from the Postmaster, as described above, we find the Agency has satisfied its burden of showing that Complainant had constructive knowledge of the relevant time frame. 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 dismissing Complainant's complaint 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
September 16, 2010
__________________
Date
2
0120102453
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102453