0120101631
08-09-2010
Melissa S. Crawford, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Melissa S. Crawford,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120101631
Agency No. 4G770002210
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated February 16, 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. 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.
BACKGROUND
In her complaint, Complainant alleged that the Agency subjected to her discrimination on the bases of race (Caucasian) and sex (female) when:
1. On August 17, 2009, Complainant was issued a seven-day Suspension based on improper conduct for using profanity on the workroom floor.
The record discloses that the alleged discriminatory event occurred on August 17, 2009, but Complainant did not initiate contact with an EEO Counselor until October 22, 2009, which is beyond the forty-five (45) day limitation period.
ANALYSIS AND FINDINGS
Complainant argues that she did not recognize that the action was discriminatory until September 25, 2009 when a Black female also used profanity on the workroom floor during a conversation with the same supervisor but was not issued any discipline. We note, however, that Complainant also stated that male employees use profanity and have not been disciplined. Complainant provided a witness statement from a co-worker, dated October 28, 2009, who stated that "several months ago" a male coworker used profanity and was not disciplined. See informal complaint. Complainant should therefore have recognized at the time of the seven-day suspension that the action was allegedly discriminatory. Complainant also argues that she was unaware of the time limits for contacting an EEO counselor. The Agency, however, has provided two affidavits from management officials averring that "Equal Employment Opportunity Is the Law" Poster 72, which provides information regarding the 45-day limit for contacting a counselor, is posted at various public locations at the facility. The Agency has therefore satisfied its burden of establishing that Complainant had constructive knowledge of the relevant time periods.
Finally, we note that on or about August 28, 2009, Complainant filed a grievance regarding the disciplinary action and a Step B decision was issued on October 20, 2009, which reduced the suspension to a letter of warning. Complainant's counselor contact occurred two days later. The Commission has consistently held that internal appeals or informal efforts to challenge an agency's adverse action and/or the filing of a grievance do not toll the running of the time limit to contact an EEO counselor. See Hosford v. Department of Veterans Affairs, EEOC Request No. 05890038 (June 9, 1989); Miller v. United States Postal Service, EEOC Request No. 05880835 (February 2, 1989). Accordingly, Complainant's initial EEO counselor contact was not timely and the Agency's final decision dismissing complainant's complaint is 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
August 9, 2010
__________________
Date
2
0120101631
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120101631