0120112042
02-22-2012
Patricia A. Olds, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Patricia A. Olds,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120112042
Agency No. 4B-140-0002-04
DECISION
Complainant filed an appeal with this Commission from the Agency's final
decision dated December 17, 2010, dismissing her complaint of unlawful
employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
For the following reasons, the Commission AFFIRMS the Agency’s final
decision.
BACKGROUND
Complainant filed a formal complaint dated November 24, 2010, alleging
that the Agency subjected her to discrimination on the basis of age
(50) when:
1. On July 3, 2003, Complainant was subjected to non-sexual harassment
and a hostile work environment.
2. On July 27, 2004, Complainant was issued a Notice of Removal.
The Agency dismissed issue (1) pursuant to 29 C.F.R. § 1614.107(a)(2),
for untimely EEO Counselor contact. The Agency noted that Complainant
did not contact an EEO Counselor with regard to this issue until October
9, 2003. Additionally, the Agency stated that Complainant was sent
a Notice of Right to File Individual Complaint on November 24, 2003.
The Agency noted that Complainant did not file her formal complaint on
issue (1), until November 24, 2010, which was seven years after receipt
of the Notice of Right to File.
Additionally, the Agency dismissed issue (2) for untimely EEO Counselor
contact. The Agency noted that Complainant was removed from the Agency
on July 27, 2004; however, she did not initiate contact with the EEO
Office regarding her removal until November 29, 2010. The Agency noted
that previously Complainant filed four timely EEO complaints.
On appeal, Complainant states that she would like to file a civil action
and have the court appoint her an attorney. Complainant states she
was in the last phase of her EEO complaint when the Agency made up a
lie and fired her. Complainant requests to be compensated for being
treated poorly and for losing her livelihood.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved
person must initiate contact with an 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.
EOC Regulation 29 C.F.R. §1614.105(a)(2) allows the agency or the
Commission to extend the time limit if the complainant can establish that
complainant was not aware of the time limit, that complainant did not
know and reasonably should not have known that the discriminatory matter
or personnel action occurred, that despite due diligence complainant was
prevented by circumstances beyond (his or her) control from contacting
the EEO Counselor within the time limit, or for other reasons considered
sufficient by the agency or Commission.
With regard to issue (1), the record reveals that Complainant did not
contact an EEO Counselor until October 9, 2003, which is beyond the
applicable 45 day limitation period. Complainant has not disputed
that October 9, 2003, was the date she first initiated EEO Counselor
contact with regard to her claim of harassment. Moreover, Complainant
has not identified any incident of harassment occurring within 45 days
of October 9, 2003. On appeal, Complainant has presented no persuasive
arguments or evidence warranting an extension of the time limit for
initiating EEO Counselor contact. Therefore, we find that issue (1)
was properly dismissed for untimely counselor contact.
With regard to issue (2), the record reveals that Complainant did not
initiate contact with the EEO Office until November 29, 2010, which was
over four years after her removal. On appeal, Complainant has failed
to provide an adequate justification for her delay in initiating EEO
Counselor contact. Thus, we find the Agency properly dismissed issue
(2) for untimely 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
February 22, 2012
__________________
Date
2
01-2011-2042
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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