0120090915
07-30-2010
Yolanda S. Geiren, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Yolanda S. Geiren,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120090915
Agency No. 1J-601-0026-08
DECISION
On December 18, 2008, Complainant filed a timely appeal with this
Commission from the Agency's decision dated November 25, 2008,
dismissing her formal Equal Employment Opportunity (EEO) 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. The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a).
For the following reasons, the Commission AFFIRMS the Agency's dismissal
of Complainant's formal EEO complaint.
ISSUES PRESENTED
The issue presented is whether the Agency properly dismissed Complainant's
formal EEO complaint for untimely EEO Counselor contact in accordance
with 29 C.F.R. � 1614.107(a)(2).
BACKGROUND
At the time of events giving rise to this complaint, Complainant was
employed as a Full-Time Mail Handler at the Agency's Carol Stream,
Illinois, Processing & Distribution Center. On September 23, 2008,
Complainant requested pre-complaint processing. She was sent a "Notice
of Right to File an Individual Complaint" on October 25, 2008, and filed
a formal EEO complaint with the Agency on November 3, 2008 alleging that
she was discriminated against based on physical disability (herniated
disc - neck) and mental disability (anxiety attacks) when, on December
19, 2006 she was issued a Notice of Proposed Removal, and subsequently
on January 20, 2007, she was issued a Letter of Decision - Removal,
effective February 23, 2007.
The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. �
1614.107(a)(2) for untimely EEO Counselor contact. Specifically, the
Agency found that, although Complainant alleges she was subject to the
first discriminatory act by the Agency on December 19, 2006, she did not
make initial contact with an EEO counselor until approximately 21 months
after this event occurred. The Agency reasoned that even if it were to
begin counting 45 days from the date of the subsequent incidents which
Complainant alleges were discriminatory, Complainant still missed the
forty-five (45) day limitation period by several months, at approximately
twenty (20) months from the occurrence of the second incident on January
20, 2007, and approximately nineteen (19) months after the occurrence
of the third and final incident on February 23, 2007.
CONTENTIONS ON APPEAL
On appeal Complainant reiterates her contention that she was not aware of
her right to file an EEO complaint. She states that because the option
to file an EEO complaint was not explicitly identified in the Proposed
Notice of Removal or the Letter of Decision, she should not be expected
to know that she could have responded to the notice in this fashion.
In response to Complainant's appeal, the Agency reiterates the arguments
from its decision dismissing Complainant's EEO complaint, and urges the
Commission to sustain its final agency decision.
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 EEO 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. Harney v. United States Postal Service, EEOC Appeal
No. 0120100886 (Jun. 10, 2010) (citing Howard v. Department of the Navy,
EEOC Appeal 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. Id.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when: (1) the individual shows that she was not notified
of the time limits and was not otherwise aware of them; (2) the individual
shows that she did not know and reasonably should not have known that the
discriminatory matter or personnel action occurred; (3) the individual
shows that despite due diligence she was prevented by circumstances beyond
her control from contacting the Counselor within the time limits; or (4)
for other reasons considered sufficient by the agency or the Commission.
29 C.F.R. � 1614.105(a)(2).
In the instant case, the record discloses that the initial alleged
discriminatory event occurred on December 19, 2006, with subsequent
alleged discriminatory events occurring on January 20, 2007 and February
27, 2007, but that Complainant did not initiate contact with an EEO
Counselor until September 23, 2008. This date is well beyond the
forty-five (45) day limitation period. On appeal, Complainant has
presented no persuasive arguments or evidence warranting an extension
of the time limit for initiating EEO Counselor contact.
We note that the agency provided affidavit testimony regarding the
presence in the workplace and content of EEO posters providing information
on the procedures to initiate an EEO complaint, and the procedures for
doing so. Further, we note that complainant has identified no authority
to support her contention that the agency was required to advise her that
her removal could be contested through the EEO process. 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
July 30, 2010
Date
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0120090915
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120090915