0120103551
01-07-2011
Vilmarie Colon, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Vilmarie Colon,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 0120103551
Agency No. 1C188000210
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated July 26, 2010, 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.
Upon review, the Commission finds that Complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely
EEO Counselor contact. For the following reasons, we AFFIRM the Agency's
final decision.
BACKGROUND
In her complaint, Complainant alleged that the Agency subjected to her
discrimination on the bases of race, sex and reprisal for prior EEO
activity, when:
On February 25, 2010, Complainant became aware through a conversation with
a former coworker that on several occasions the co-worker had refused
taking directives from his supervisor, but no disciplinary action was
taken against him
The record reveals that Complainant was removed from her position with
the Agency effective October 4, 2008. Notice of Removal, September
5, 2008, Record on Appeal (ROA) at 28. However, Complainant did not
contact an EEO Counselor until March 13, 2010. EEO Dispute Resolution
Specialist's Inquiry Report, July 16, 2010, ROA at 16.
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 a personnel
action, within forty-five (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 forty-five (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.
In the instant case, the record discloses that the alleged discriminatory
event occurred on October 4, 2008, but Complainant did not initiate
contact with an EEO Counselor until March 13, 2010, which is beyond
the forty-five (45) day limitation period. On appeal, Complainant has
presented no persuasive arguments or evidence warranting an extension
of the time limit for initiating EEO Counselor contact.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's
complaint pursuant to 29 C.F.R. � 1614.107(a)(2) is AFFIRMED.
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
January 7, 2011
__________________
Date
2
0120103551
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120103551