01a60933
04-11-2006
Mandy D. Jones, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Mandy D. Jones v. United States Postal Service
01A60933
April 11, 2006
.
Mandy D. Jones,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A60933
Agency No. 4G-770-0250-05
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated October 19, 2005, dismissing her formal EEO
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.
On June 9, 2005, complainant initiated contact with the EEO office.
Informal efforts to resolve complainant's concerns were unsuccessful.
In a formal complaint filed on October 5, 2005, complainant claimed that
she was subjected to discrimination on the basis of sex (female) when:
(1) on April 15, 2005, she was forced to take Leave Without Pay (LWOP)
because mail was found in a parcel locker however she was out sick during
this time; and
(2) on April 28, 2005, she was issued a Notice of Removal and charged
with Improper Conduct - Obstruction and Delay of Mail.
In its final decision, the agency dismissed the complaint pursuant to 29
C.F.R. � 1614.107(a)(2), on the grounds that the complaint was untimely
filed. Alternatively, the agency dismissed the complaint on the grounds
of untimely EEO Counselor contact pursuant to 29 C.F.R. � 1614.107(a)(2)
and for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
Regarding complainant's June 9, 2005 initial EEO Counselor contact, the
agency concluded that the alleged discriminatory acts occurred on April
15 and 28, 2005. However, the agency found that complainant did not
contact an EEO Counselor until June 9, 2005, which exceeds the requisite
45-day time limit. In support of its determination, the agency submitted
a document that was signed by the Postmaster indicating that EEO Poster
72 was posted on the Employee Bulletin Board in view for all employees.
The agency did not include a copy of the EEO poster. Finally, the agency
found that complainant failed to show she was aggrieved.
It is the Commission's policy that constructive knowledge will be
imputed to an employee when an employer has fulfilled its obligation
of informing employees of their rights and obligations under Title VII.
Thompson v. Department of the Army, EEOC Request No. 05910474 (Sept. 12,
1991) (citing Kale v. Combined Ins. Co. of America, 861 F.2d 746
(1st Cir. 1988)). The agency has the burden of producing sufficient
evidence to support its contention that it fulfilled its statutory duty
of conspicuously posting EEO information or that it otherwise notified
complainant of her rights.
Here, the agency has presented sufficient evidence showing that
complainant had constructive notice of the time limit for contacting an
EEO Counselor. The record contains a copy of a certification dated June
3, 2004, from the Postmaster confirming that Poster 72, dated June 2004,
was posted on the Employee Bulletin Board in the Conroe Post Office.<1>
The record therefore supports a determination that EEO posters were
displayed in prominent location available to complainant, and her failure
to review the poster does not justify an extension of the time limit.
Therefore, we find that the agency properly dismissed the complaint for
untimely EEO Counselor contact.
Accordingly, the agency's decision dismissing complainant's complaint
is AFFIRMED.
Because we affirm the agency's dismissal of the complaint for the reason
stated herein, we find it unnecessary to address alternative dismissal
grounds.
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
April 11, 2006
__________________
Date
1Copies of the posters are not contained in the record. However,
the Commission notes that we previously determined that the agency
document identified as "poster 72" contains information relating to
the forty-five day limitation period. Purtell v. USPS, EEOC Appeal
No. 01987087 (September 10, 1999).