0120161946
07-26-2016
Milissa H.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Milissa H.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120161946
Agency No. 4E-640-0025-16
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated April 14, 2016, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency's Post Office facility in Kansas City, Missouri.
On November 24, 2015, Complainant contacted the EEO Counselor regarding her claim of harassment. The Agency sent her pre-complaint forms to be completed and returned within 10 calendar days. The Agency indicated that if Complainant failed to complete the forms, the request for counseling will be closed without further action. When Complainant failed to provide the forms to the Agency, it sent her a letter dated December 15, 2015, stating that due to Complainant's failure to provide the forms, the matter was now closed.
On December 28, 2015, Complainant provided the EEO pre-complaint forms. She changed the date of the form from November 24, 2015 to December 28, 2015. Complainant did not provide any reason for the change. In addition, Complainant included a document providing support for her claim of harassment based on sex and in reprisal for her prior EEO activity. The EEO Counselor attempted to contact Complainant but, according to the Counselor's report, Complainant failed to respond and did not engage in counseling. As such, the EEO Counselor continued the informal process without the involvement of Complainant or her representative. Since the matter was not resolved, the EEO Counselor issued Complainant a Notice of Right to File her Formal Complaint.
On January 28, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when she was subjected to harassment. In support of her claim of harassment, Complainant indicated that the following events occurred:
1. On October 17, 2015, Complainant was questioned about not leaving her time card at work;
2. On October 20, 2015, the Dallas District denied Complainant's request for a transfer;
3. On October 24, 2015, Complainant was questioned while attempting to deliver a parcel;
4. On October 29, 2015, she was interviewed by Human Resources personnel regarding your harassment claim; and
5. On October 31, 2015, you were questioned about leaving your vehicle unsecured.
The Agency dismissed the complaint pursuant to 29 C.F.R. �1614.107(a)(2) for failure to raise the matter with the EEO Counselor within 45 days. The Agency noted that Complainant contacted the EEO Counselor on December 28, 2015, well beyond 45 days from October 31, 2015. As such, the Agency dismissed the complaint as a whole.
Complainant appealed. Complainant provided a copy of the Agency's letter dated December 15, 2015, indicating that she had contacted the EEO Counselor on November 24, 2015, but failed to provide forms within 10 calendar days. As such, Complainant argued that she contacted the EEO Counselor on November 24, 2015, well within 45 days. Therefore, Complainant requested that the Commission reverse the Agency's dismissal.
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.
Upon review, we find that Complainant did initially contact the Agency on November 24, 2015, regarding the instant matter. Complainant was asked to provide the forms to the Agency within 10 days. Complainant failed to do so. Complainant has never provided any explanation for her failure to provide the documents within 10 days. It was only after the Agency informed Complainant that the matter was closed without counseling did Complainant follow up on December 28, 2015. However, again, Complainant failed to respond to the EEO Counselor's request to become involved with the informal counseling process. Based on our review of the instant record, we find that Complainant did initially contact the EEO Counselor in a timely manner. However, she abandoned the EEO matter without explanation. We also note that Complainant changed the date on her pre-complaint form to reflect the December 28, 2015 date. Therefore, we find that the Agency's dismissal of the complaint pursuant to 29 C.F.R. � 1614.107(a)(2) was appropriate.
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 (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
July 26, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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