Dianne L Hamilton, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionDec 4, 2003
01a34633 (E.E.O.C. Dec. 4, 2003)

01a34633

12-04-2003

Dianne L Hamilton, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


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