0120161660
07-08-2016
Verdie A.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Verdie A.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120161660
Agency No. 4G-752-0051-16
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated March 16, 2016, dismissing her complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Rural Carrier at the Agency's North Texas Processing and Distribution Center in Coppell, Texas.
On November 12, 2015, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful.
On February 29, 2016, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected her to discrimination on the basis of disability when:
she was incorrectly charged for Health and Life insurance premiums and has not been reimbursed.
In that portion of the complaint form (Number 15), which requested identification of the date on which the alleged act of discrimination took place, Complainant made the following entry: "2011-2014."
In its March 16, 2016 final decision, the Agency dismissed the formal complaint on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency determined that Complainant's initial EEO Counselor contact was on November 12, 2015, which it found to be beyond the 45-day limitation period. Finally, the Agency indicated that because EEO posters with timeframes were on display in Complainant's workplace, she was, or should have been, familiar with the 45-day limitation period.
The Agency also dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. Specifically, the Agency found that the subject claim is a collateral attack on the negotiated grievance process.
Complainant, on appeal, states, "since I am not challenging the agency action my case should not be dropped as a collateral attack. What I am challenging is the fact that the USPS is only charging me this overpayment of health benefits and refusing to reimburse me for the amount I have over paid due to the fact that I am a disabled employee."
The instant appeal followed.
ANALYSIS AND FINDINGS
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 forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within forty-five (45) days of the effective date of the action.
The alleged discriminatory events occurred in 2011 and 2014. However, Complainant did not initiate contact with an EEO Counselor until November 12, 2015, well beyond the 45-day limitation period. Complainant had, or should have had, a reasonable suspicion of discrimination regarding her claim more than 45 days prior to her initial contact with an EEO Counselor. We note that Complainant does not deny that she failed to contact an EEO Counselor within the required 45-days after she reasonably suspected discrimination. In summary, we determine that, on appeal, Complainant did not present persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. See 29 C.F.R. � 1614.604(c). Therefore, the Agency properly dismissed the complaint on the grounds of untimely EEO Counselor contact.
The Agency's final decision dismissing Complainant's formal complaint for the reasons stated herein is AFFIRMED.
Because we affirm the Agency dismissal for the reason discussed above, we find it unnecessary to address alternative dismissal grounds.
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 8, 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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