0120120072
03-16-2012
Virginia M. Munoz, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.
Virginia M. Munoz,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120120072
Agency No. 4E800-0131-11
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated September 2, 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant
worked as a City Carrier at the Agency’s Westwood Station facility
in Denver, Colorado. The record showed that Complainant contacted
the Union regarding a claim of harassment by the Postmaster. When the
matter was not resolved, Complainant decided to contact the Agency’s
EEO Office on May 10, 2011. Complainant took the pre-complaint form and
filed it with the Agency on May 25, 2011. Attached to her pre-complaint
form, Complainant alleged that the Postmaster had been harassing her.
Complainant asserted that Management had issues with women who asserted
themselves.
The EEO Counselor’s Report showed that Complainant raised events
including alleged sexual harassment on the part of the Postmaster in
August 2010 and March 10 and 22, 2011. The EEO Counselor also noted that
Complainant did not contact the EEO Office because she was hoping that
the issue would pass and she was still recovering from her on-the-job
injury dated February 9, 2011. The EEO Counselor also noted that on
March 31, 2011, the Supervisor tried to meet with Complainant about
the grievance without a Union representative and on March 29, 2011,
Complainant had to change her doctor’s appointment.
When the matter could not be resolved informally, Complainant was
issued a Notice of Right to File a Formal Complaint. On August 18,
2011, Complainant filed a formal complaint alleging that the Agency
subjected her to discrimination on the bases of race/national origin
(Mexican/American), sex (female), disability (on-the-job injury), age (not
specified), and reprisal for filing a union grievance regarding sexual
harassment when, on February 9, 2011, Complainant filed a grievance which
had not been resolved. Complainant also stated that she had an on-the-job
injury that has required surgery on her left knee. She asserted that she
had many issues with this incident which were unresolved. In addition to
the complaint, Complainant attached a document to the formal complaint
entitled “Unfair Scheduling of Mandatory Overtime” dated February
17, 2011. The document ended with Complainant declaring that disparate
treatment occurs at the Agency.
The Agency issued its final decision defining the complaint as a claim
of harassment. In support of her claim, the Agency indicated that the
following events occurred:
• On February 9, 2011, Complainant was mandated to work overtime
resulting in an on-the-job injury;
• On February 14, 2011, Complainant was spoken to in a disrespectful
manner; and
• On February 16, 2011, Complainant was informed that there was no
work available within her restrictions (from her February 9, 2011 injury)
and she was placed off the clock until March 2, 2011.1
The Agency noted that Complainant did not raise all the events in the
formal complaint that she did before the EEO Counselor. As such, the
Agency found those events were abandoned. The Agency then dismissed
the complaint for untimely EEO Counselor contact. The Agency noted that
Complainant’s most recent event occurred on February 16, 2011. Further,
the Agency noted that Complainant’s contact on May 10, 2011, was well
beyond the 45 day time limit. As such, the Agency dismissed the matter
pursuant to 29 C.F.R. §1614.107(a)(2) for untimely EEO Counselor contact.
Complainant appealed providing the Commission with several documents
pertaining to Complainant’s complaint as well as her grievance.
Amongst the documents provided by Complainant, she included a “Letter of
Summarization” which she indicated that provided the issues surrounding
her EEO complaint. In the “Letter,” Complainant stated that she filed
a grievance on her on-the-job injury. However, she received no status on
the settlement of the grievance. Therefore, she contacted the EEO Office.
Complainant also alleged that on March 31, 2011, the Postmaster called
Complainant into his office and threatened to walk her route and harass
Complainant over the grievance. Complainant indicated that she tried to
meet the deadlines. Complainant provided several other documents but
failed to provide any narrative explaining the relevance of the stack
of documents.
The Agency requested that the Commission affirm its decision to dismiss
the complaint at hand.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. §1614.107(a)(2) states 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, §1614.106 and
§1614.204(c), unless the agency extends the time limits in accordance
with §1614.604(c).
EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved
person must initiate contact with an EEO 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.
EEOC Regulation 29 C.F.R. §1614.105(a)(2) allows the agency or the
Commission to extend the time limit if the complainant can establish that
complainant was not aware of the time limit, that complainant did not
know and reasonably should not have known that the discriminatory matter
or personnel action occurred, that despite due diligence complainant
was prevented by circumstances beyond her control from contacting the
EEO Counselor within the time limit, or for other reasons considered
sufficient by the agency or Commission.
Upon review of Complainant’s formal complaint, it is clear that
Complainant alleged a claim of discrimination regarding the mandatory
overtime which resulted in her injury. This event occurred on February
9, 2011. Complainant did not provide any other event in her formal
complaint. Further, it is clear that Complainant first raise the
issue with the union in a grievance. When the matter was not resolved
through the grievance process, Complainant contacted the EEO Counselor.
Complainant’s contact on May 10, 2011, was well beyond 45 calendar
days from date of the most recent event, namely March 23, 2011, which,
according to a document in the record, constituted her last day in
service. It is also abundantly clear that Complainant chose to pursue
the matter through the grievance process. However, when the matter was
not resolved, Complainant chose to change venues regarding her complaint.
We note, however that the use of the negotiated grievance procedure does
not toll the time limit for contacting an EEO Counselor. Schermerhorn
v. U.S. Postal Serv., EEOC Request No. 05940729 (Feb. 10, 1995). As such,
we find that Complainant’s contact on May 10, 2011, was untimely.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the
Agency’s final decision dismissing the complaint at hand.
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
March 16, 2012
__________________
Date
1 The Agency indicated that this date was gleaned from the pre-complaint
documents.
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0120120072
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120120072