0120150866
02-09-2017
Sacha K.,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
Sacha K.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120150866
Agency No. 4E640008414
DECISION
Complainant timely appealed to this Commission from the Agency's December 15, 2014 dismissal of 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 Associate (Q-01) at the Agency's Blue Springs Carrier Annex in Blue Springs, Missouri.
On November 14, 2014, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (Hispanic) and sex (female) when:
On May 3, 2014, she was issued a Notice of Removal for Violation of Last Chance Agreement ("LCA"), effective June 2, 2014.
Complainant entered into the above referenced Last Chance Agreement ("LCA") with the Agency on January 16, 2014, to resolve a Notice of Removal issued in December 2013. In relevant part, the LCA provided that for a period of two years, "it is understood and agreed by [Complainant] that she can incur no more than three (3) unscheduled absences in any six month period and no incidents of AWOL."
The May 3, 2013 Notice of Removal cited six alleged violations of the LCA that took place over a period of two weeks in January and February 2014. The violations included four instances of unscheduled leave without pay ("USWOP"), one AWOL, and one instance where Complainant was 5 minutes late to her shift. According to the record, Complainant believed she had been granted time off for at least some of these absences. She also alleged that her manager, the Supervisor for Customer Services ("S1") was trying to get her fired and continuously "picked on" her and her mother, who worked under him in the past.
The Agency dismissed Complainant's complaint for untimely EEO Counselor contact, pursuant to 29 C.F.R. �1614.107(a)(2) and 29 C.F.R. �1614.105(a)(1).
ANALYSIS AND FINDINGS
In relevant part, 29 C.F.R. � 1614.107(a)(2) provides 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. EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity 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.
The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the 45 day limitation period is triggered. See Howard v. Dep't of the Navy, EEOC Request No. 05970852 (Feb, 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. (Complainant v. United States Postal Serv., EEOC Appeal No. 0120120499 (Apr. 19, 2012))
As Complainant's claim concerns a personnel action, the 45 day limitation period was triggered on the date it became effective, June 2, 2014. Complainant did not initiate contact with an EEO Counselor until July 28, 2014, approximately 2 weeks after the 45 days had passed. Further, the record indicates that Complainant developed reasonable suspicion of discrimination by the time she received the May 3, 2014 Notice of Removal. She alleges that S1 tried to have her mother removed when she worked for him, and that S1 was actively trying to remove Complainant because of her race and sex, and because he allegedly did not like her family. Coupled with this alleged animosity, are the two Notices of Removal, and allegedly incorrectly labeled absences. Hence, based a reasonable suspicion analysis, Complainant's complaint is still untimely.
On appeal, Complainant has not provided us with any explanation for her untimely EEO Contact. The only reason provided in the record is that Complainant held off on contacting an EEO Counselor because she wanted to know the outcome of an unspecified grievance first. We are not persuaded to waive the limitation period on these grounds. The Commission has consistently held that the utilization of agency procedures, union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. See Ellis v. United States Postal Serv., EEOC Appeal No. 01992093 (Nov. 29, 2000).
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
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
February 9, 2017
__________________
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.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120150866
2
0120150866
5 0120150866