01a43640
11-15-2004
Arlene V. Kimble, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Arlene V. Kimble v. United States Postal Service
01A43640
November 15, 2004
.
Arlene V. Kimble,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A43640
Agency No. 1J-461-0088-03
DECISION
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.
The record reflects that on August 29, 2003, complainant's union and
the agency entered into a Step 2 Settlement, wherein the grievant was
identified by the designation �class action� and whose subject was
listed as �preferred assignments.� The grievance settlement provided
that agency management would abide by Article 37.1.C and Section 9 of
the LMOU [Local Memorandum of Understanding].<1>
On September 11, 2003, complainant contacted an EEO Counselor. The EEO
Counselor's Report indicated that complainant claimed that black female
agency employees have been forced to work in a hostile work environment.
The EEO Counselor's Report further indicated that complainant claimed
that all black female employees are segregated; that their mail is
tagged and checked for accuracy; that they are given extra duties;
sent to undesirable work locations; required to perform heavy manual
labor; and not allowed to perform express mail duties. As a remedy,
complainant requested, in part, compensatory damages and for agency
management to comply with �Article 37.1c of the National Agreement
and Section 9 of the Local Memorandum.� Informal efforts to resolve
complainant's concerns were unsuccessful.
On February 18, 2004, complainant filed a formal complaint, claiming
that she was the victim of unlawful employment discrimination on the
bases of race, sex, national origin, age, disability, and in reprisal
for prior protected activity.
In a final decision dated April 16, 2004, the agency determined that
complainant's complaint was comprised of the claim that beginning in
March 2003, she was denied training in the duties of an express mail
back-up clerk. The agency dismissed the complaint on the grounds
of untimely EEO Counselor contact. The agency noted that complainant
waited until the settlement of a grievance, dated August 29, 2003, before
pursuing the EEO complaint process. claiming that since March 2003,
she has been denied training in duties of an express mail back-up clerk.
On appeal, complainant argues that her formal complaint was improperly
dismissed. In response, the agency argues that the instant complaint
�began as a class action�, but reiterates that complainant waited until
the settlement of a grievance before she initiated EEO counseling on
September 11, 2003.
Complainant stated in her formal complaint that the alleged
discriminatory event occurred �since March 2003� when she unsuccessfully
requested to be trained in various duties relating to her bid run
assignment. Complainant, however, did not initiate contact with an
EEO Counselor until September 11, 2003. The Commission determines
that complainant has not identified any specific incident of unlawful
employment discrimination that purportedly occurred within forty-five
days of her initial EEO contact. Moreover, we note that in her formal
complaint, complainant stated that she had previously filed a grievance
regarding this matter. 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 (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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 15, 2004
__________________
Date
1The record reflects that on September 23,
2003, various agency employees, including complainant, transmitted a
memorandum to their union regarding the agency's purported refusal to
comply with a �class action grievance� regarding preferred assignments
and period checks of mail. The employees also noted that they were
subject to disparate treatment on the bases of race and sex.