0120103105
11-12-2010
Ronnie Arnold, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Ronnie Arnold,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120103105
Agency No. 1H304002110
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated June 4, 2010, 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.
BACKGROUND
On February 9, 2010, Complainant contacted an EEO Counselor regarding a claim of sexual harassment. Specifically, Complainant alleged that on December 22, 2009, her supervisor came into her work station and put his finger in her ear and later leaned over her while she was seated and placed his hands on her desk. When the matter was not resolved informally, Complainant filed a formal complaint.
The Agency dismissed the complaint pursuant to 29 C.F.R. �1614.107(a)(2) for failing to raise the issue with an EEO Counselor in a timely manner. Further, the Agency determined that Complainant failed to state a claim of harassment. Therefore, the Agency dismissed the complaint pursuant to 29 C.F.R. �1614.107(a)(1) as well.
This appeal followed. On appeal, Complainant alleged, through counsel, that she did contact the Agency in a timely manner. Complainant indicated that she informed management of the incident and management failed to respond to her claim of sexual harassment. Based on the Agency's failure to respond, Complainant contacted the EEO Counselor to pursue her EEO complaint. Complainant also asserted that she was alleging sexual harassment which is actionable. The Agency requested that the Commission affirm its dismissal.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a)(2) states that the agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in �1614.105, �1614.106 and �1614.204(c), unless the agency extends the time limits in accordance with �1614.604(c).
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. EEOC 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 her control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the agency or Commission.
Upon review of the record, we find that the crux of Complainant's compliant is the sexual harassment she believed she experienced on December 22, 2009. She should have been aware of the alleged sexual harassment when it occurred in December 2009. Complainant did not contact the EEO Counselor until February 9, 2010, which is beyond the 45-day limit. Complainant has not provided adequate justification to extend the time limits. Complainant's reliance on management to resolve her claim does not excuse an untimely EEO Counselor contact. The Commission has consistently held that the utilization of agency procedures, union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. See Ellis v. United States Postal Service, EEOC Appeal No. 01992093 (November 29, 2000). Therefore, we find that the Agency's dismissal of the complaint pursuant to 29 C.F.R. �1614.107(a)(2) was appropriate.1
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision.
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
November 12, 2010
__________________
Date
1 We note that since the Commission affirmed the dismissal of the complaint pursuant to 29 C.F.R. �1614.107(a)(2), we need not address the Agency's dismissal pursuant to 29 C.F.R. �1614.107(a)(1).
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0120103105
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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