01a34633
12-04-2003
Dianne L Hamilton v. United States Postal Service
01A34633
December 4, 2003
.
Dianne L Hamilton,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A34633
Agency No. 4J-630-0058-03
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.
In her formal complaint, filed on April 3, 2003, complainant alleged
that she was subjected to discrimination on the bases of race and sex
when in February 2003, she became aware that comparative employees
were involved in an altercation and were not removed, although she
was involved in an altercation on March 19, 2002, and was removed from
agency employment effective May 31, 2002.
In its final decision dated July 2, 2003, the agency dismissed the
complaint for untimely EEO Counselor contact. The agency found that
complainant stated September 25, 2002, as the date of the incident when
she sought EEO counseling on February 25, 2003, and that therefore,
her EEO Counselor contact was untimely.
The record discloses that complainant was issued a Notice of Removal
on April 24, 2002, which was to be effective on May 31, 2002, but that
complainant did not initiate contact with an EEO Counselor until February
25, 2003, which is beyond the forty-five (45) day limitation period.
On appeal, complainant states that "my complaint may seen untimely because
from the time of the incident on 3-19-02 until 12-18-02, I was depending
on the work of my union. I learned from the union (APWU) and an EEO
Counselor that � the postmaster do[es] not want you back in the postal
system.'" Further complainant identified in a Request for EEO Counseling
form that �9-25-2002" was the date of the incident that prompted her to
seek EEO counseling and that she had filed a grievance on March 19, 2002,
on this matter. Complainant further asserts that on February 10, 2003,
upon learning that comparative employees were not similarly disciplined,
she timely contacted an EEO Counselor later that month.
Given complainant's assertion that it merely appears that she untimely
contacted an EEO Counselor, because she was depending upon the
assistance of her union, we are unpersuaded by her additional contention
that she only developed a reasonable suspicion of unlawful employment
discrimination in February 2003, when she purportedly determined that
comparative employees were treated more favorably than she under similar
circumstances. Complainant had or should have had a reasonable suspicion
of unlawful employment discrimination at the time of her separation from
agency employment. On appeal, complainant offers no persuasive argument
in justification of her delay in contacting an EEO Counselor.
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
December 4, 2003
__________________
Date