0120113368
12-08-2011
Sabrina Beatty, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Sabrina Beatty,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120113368
Agency No. 1F915000311
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated June 3, 2011, 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. Upon review, the Commission finds that
Complainant's complaint was properly dismissed pursuant to 29 C.F.R. §
1614.107(a)(2), due to the untimely filing of the formal complaint.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Distribution Clerk at the Agency’s Pasadena P&DC facility in
Pasadena, California.
On May 11, 2011, Complainant filed a formal complaint alleging that the
Agency subjected her to discrimination on the bases of disability and
reprisal for prior protected EEO activity under Title VII of the Civil
Rights Act of 1964 when (1) on January 5, 2011 Complainant was not
allowed to bring her attorney to a meeting with the District Reasonable
Accommodation Committee (DRAC), and the paralegal with her was not
permitted to speak; and (2) on February 15, 2011, Complainant was told
there was no work available and she was sent home due to the National
Reassessment Process.
The Agency dismissed the complaint for failure to file the formal
complaint in a timely manner. The Agency also dismissed claim 1 for
failure to raise the claim with the EEO counselor in a timely manner and
for failure to state a claim. In her appeal, Complainant’s attorney
does not deny the receipt date and states that “the fact that the
postmark on the envelope was one day late does not unto itself make the
Complainant’s appeal [sic] late,” and argues that the Agency’s
recent cutbacks could cause mail to receive a later postmark.
ANALYSIS AND FINDINGS
The record discloses that Complainant received the notice of right
to file a formal complaint on April 25, 2011. Although the notice
indicated that Complainant had to file a formal complaint within fifteen
(15) calendar days of its receipt, Complainant did not file her formal
complaint until May 11, 2011, which is beyond the limitation period.
EEOC Regulation 29 C.F.R. § 1614.604(b) clearly states that a document
shall be deemed timely if it is received or postmarked before the
expiration of the applicable filing period. On appeal, Complainant has
not offered adequate justification to warrant an extension of the time
limit for filing the complaint.
Accordingly, the Agency's final decision dismissing Complainant's
complaint is AFFIRMED.1
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
December 8, 2011
__________________
Date
1 The Commission takes judicial notice that the disability portion
of claim 2 appears to identical to the claim(s) raised in McConnell,
et. al. v. United States Postal Service (Agency No. 4B-140-0062-06),
a class action complaint. On May 30, 2008, an EEOC Administrative Judge
(AJ) granted class certification in McConnell, et. al,1 which defined
the class as all permanent rehabilitation employees and limited duty
employees at the agency who have been subjected to the NRP from May 5,
2006 to the present, allegedly in violation of the Rehabilitation Act.
The AJ defined the McConnell claims into the following broader complaint:
(1) The NRP fails to provide a reasonable accommodation (including
allegations that the NRP “targets” disabled employees, fails to
include an interactive process, and improperly withdraws existing
accommodation); (2) The NRP creates a hostile work environment; (3)
The NRP wrongfully discloses medical information; and (4) The NRP has an
adverse impact on disabled employees. The Agency chose not to implement
the decision and appealed the matter to the Commission. The Commission
agreed with the AJ’s definition of the class and the McConnell claims,
as stated above. Accordingly, the Commission reversed the Agency's final
order rejecting the AJ's certification of the class. McConnell v. USPS,
EEOC Appeal No. 0720080054 (January 14, 2010). As such, regardless of the
timeliness issue herein, claim 2 may be subsumed into the class action.
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0120113368
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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