0120101327
05-26-2011
Julie A. Sacco, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (New York Metro Area), Agency.
Julie A. Sacco,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(New York Metro Area),
Agency.
Appeal No. 0120101327
Agency No. 4A-070-0206-09
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated January 6, 2010, dismissing her complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. § 791 et seq.
ISSUE PRESENTED
The issue presented herein is whether the Agency properly dismissed the
complaint at hand pursuant to 29 C.F.R. § 1614.107(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a Letter Carrier at the Agency’s Dover Post Office facility in Dover,
New Jersey. The record indicated that Complainant contacted the EEO
Counselor on September 3, 2009. When the mater could not be resolved
informally, Complainant was issued a notice of right to file a formal
complaint. On December 2, 2009, Complainant filed a formal complaint
alleging that the Agency subjected her to discrimination on the bases
of sex (female), disability (knee), and reprisal for prior protected
EEO activity under Title VII when:
1. On or about June 2, 2009, Complainant was advised that her position
was being abolished, she was removed from her position, and her duties
were given to a number of outside contractors;
2. From approximately June 2, 2009 until early July 2009, Complainant
was assigned other duties, and thereafter placed on "stand by" status
for 3-4 hours per day with no responsibilities; and
3. On an unspecified date, she was scheduled for National Reassessment
Program (NRP).1
The Agency dismissed the complaint pursuant to 29 C.F.R. §1614.107(a)(2)
for untimely EEO Counselor contact. The Agency noted that the
alleged events occurred in June and early July 2009, while Complainant
contacted the EEO Counselor on September 3, 2009, beyond the 45 day
time limit. The Agency also noted that Complainant had engaged in
prior EEO activity, therefore she should have been aware of the 45 day
time limit. In addition, the Agency dismissed the matter pursuant to
29 C.F.R. §1614.107(a)(1) for failure to state a claim. The Agency
held that Complainant failed to show that she was aggrieved.
Complainant appealed. Complainant’s attorney (Attorney) asserted that
Complainant raised the alleged discrimination with her union steward.
As such, the Attorney has argued that Complainant raised her claim of
discrimination with an individual who was “logically connected with the
EEO process.” The Attorney asserted that Complainant was not placed
on notice of the time limit based on the postings within the Agency.
Finally, the Attorney claimed that the Agency’s dismissal for failure
to state a claim was not appropriate for Complainant has been harmed by
the alleged discrimination.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. §1614.107(a)(2) states that the agency shall
dismiss a complaint or a portion of a complaint that fails to comply
with the applicable time limits contained in §1614.105, §1614.106 and
§1614.204(c), unless the agency extends the time limits in accordance
with §1614.604(c).
EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved
person must initiate contact with an EEO Counselor within 45 days of
the date of the matter alleged to be discriminatory or, in the case of
a personnel action, within 45 days of the effective date of the action.
EEOC Regulation 29 C.F.R. §1614.105(a)(2) allows the agency or the
Commission to extend the time limit if the complainant can establish that
complainant was not aware of the time limit, that complainant did not
know and reasonably should not have known that the discriminatory matter
or personnel action occurred, that despite due diligence complainant
was prevented by circumstances beyond her control from contacting the
EEO Counselor within the time limit, or for other reasons considered
sufficient by the agency or Commission.
As an initial matter, we find that Complainant was aware of the 45-day
time limit based on her prior EEO activity. Further, we determine that
Complainant contacted the EEO Counselor on September 3, 2009, beyond the
45-day time limit. Complainant argued on appeal through the Attorney that
she had informed a union official of the alleged discrimination. However,
we find that appellant's contact with a union official, who was neither
an EEO Counselor nor an individual who was “logically connected with the
EEO process,” does not constitute EEO contact. See Jones v. Dep’t. of
the Army, EEOC Request No. 05900435 (September 7, 1990) (complainant's
contact with an agency official who is “logically connected with
the EEO process is sufficient to constitute EEO contact). Therefore,
we find no basis to determine that Complainant’s contact was made in
a timely manner. As such, we determine that the Agency’s dismissal
of the complaint as a whole pursuant to 29 C.F.R. §1614.107(a)(2)was
appropriate.2
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the
Agency’s final decision.
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
May 26, 2011
__________________
Date
1 There is no indication that Complainant has alleged that she has
actually been subjected to the National Reassessment Program in the
instant complaint.
2 The Commission notes that since it has affirmed the Agency’s dismissal
of the complaint pursuant to 29 C.F.R. §1614.107(a)(2), we need not
address the Agency’s additional grounds for dismissal pursuant to 29
C.F.R. §1614.107(a)(1) for failure to state a claim.
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0120101327
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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