0120120332
03-12-2012
Cindy L. Bowman, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Northeast Area), Agency.
Cindy L. Bowman,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120120332
Agency No. 1B-121-0012-11
DECISION
Complainant filed a timely appeal with this Commission from an Agency decision, dated September 30, 2011, dismissing a formal 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.
BACKGROUND
Complainant was previously employed as a Clerk at the Utica Processing & Distribution Center (P&DC) in Utica, New York. Approximately three years after applying for disability retirement, Complainant initiated contact with an Agency EEO Counselor on June 22, 2011. Complainant believed that she was subjected to discrimination based on her disability. Informal efforts to resolve Complainant's concerns were unsuccessful. On September 9, 2011, Complainant filed the instant formal complaint.
The Agency framed the claims as follows:
Between 2004 and 2007, Complainant's requests for reasonable accommodation were denied, her hours were reduced, she was denied medically necessary breaks, and she was not awarded a window bid position. These incidents ultimately resulted in her being forced to apply for disability retirement, effective in July 2008.
In its final decision, the Agency dismissed the formal complaint on the grounds of untimely EEO Counselor contact. The Agency found that Complainant's June 22, 2011 contact was approximately three years after she applied for disability retirement and four to seven years after the purportedly discriminatory events that led to her retirement. According to the Agency, Complainant provided no evidence that she was unaware of the time limit or that she was so incapacitated that she was unable to make timely contact. Further, the Agency found that an EEO poster was on display at the facility where Complainant was employed.
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 (Feb. 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.
Complainant contacted an EEO Counselor on June 22, 2011, regarding events that occurred between 2004 and 2008. According to the Counselor's Report, when asked why she waited to initiate counseling, Complainant stated that she called the EEO complaint line after she retired; and she received paperwork and submitted it, but never received a response. When she called to inquire, Complainant was told that the EEO office never received the paperwork. She did not resubmit the documents. Thereafter, Complainant wrote to the Department of Justice and her Congressman, who advised her to use the EEO process. On appeal, Complainant reiterates that she timely contacted the EEO office after her retirement, but that the Agency never received her claim. For the past three years, she has raised the matter with Congressmen, Senators and the EEOC.
The Commission finds that Complainant has failed to provide sufficient justification for tolling or extending the time limit. Complainant contends that she submitted paperwork to the EEO office following her retirement. However, she also acknowledges that she took no further action upon learning that they had not received any paperwork. Years later, she wrote to her Congressman and the Department of Justice, who directed her to the EEO process. Even after DOJ informed Complainant that she needed to initiate contact with an EEO Counselor in a December 4, 2010 letter, Complainant waited approximately six months to take action. Therefore, we find that the Agency's dismissal for untimely counselor contact was proper.
CONCLUSION
Accordingly, the Agency's decision is hereby 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
March 12, 2012
__________________
Date
2
0120120332
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120120332