Sabrina Beatty, Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity CommissionDec 8, 2011
0120113368 (E.E.O.C. Dec. 8, 2011)

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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