0120092804
11-10-2009
April L. Monroe, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Capital Metro Area), Agency.
April L. Monroe,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Capital Metro Area),
Agency.
Appeal No. 0120092804
Agency No. 1K271000309
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated May 11, 2009, 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. In her
complaint, complainant alleged that she was subjected to discrimination on
the bases of race (Black), sex (female), and color (light skinned) when:
1. On August 11, 2008, complainant was issued a Notice of Removal
effective September 19, 2008. Complainant further alleges that on
October 29, 2008, the agency denied her grievance at the Step 2 level.
The agency dismissed claim as untimely pursuant to EEOC Regulation 29
C.F.R. � 1614.107(a)(2). 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. Department of the Navy, EEOC Request No. 05970852 (February
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.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented by
circumstances beyond her control from contacting the Counselor within the
time limits, or for other reasons considered sufficient by the agency or
the Commission. The agency found that complainant was put on notice of
the alleged discriminatory event in this matter; complainant's removal,
by letter dated August 11, 2008 and that complainant's duty to act was
triggered by notice of her pending removal effective September 19, 2008.
Therefore, the agency found that complainant's counselor contact on
November 12, 2008 was untimely. The agency further indicated that EEO
posters containing relevant counselor contact information were prominently
displayed at complainant's worksite. In that regard, the agency found
that complainant had constructive knowledge of the 45-day time limitation.
We agree with the agency's finding in this regard.
The agency further indicates that complainant filed a grievance regarding
the agency's removal action, and that the agency's step two decision
denying complainant's grievance was reached on October 29, 2008.
Complainant argues on appeal that her claim should be found timely
because she contacted an EEO Counselor within 45 days of the October 29,
2008 step 2 decision. Complainant's formal complaint in this matter
identifies October 29, 2008 as the date of the alleged discriminatory
event and on appeal, complainant maintains that her complaint argues
that the agency should have settled her grievance claim. To the extent
that complainant claims that the agency's step 2 decision was in error,
the Commission finds that complainant has failed to state a claim.
The Commission has held that an employee cannot use the EEO complaint
process to lodge a collateral attack on another proceeding. See Wills
v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998);
Kleinman v. United States Postal Service, EEOC Request No. 05940585
(September 22, 1994); Lingad v. United States Postal Service, EEOC
Request No. 05930106 (June 25, 1993). The proper forum for complainant
to have raised her challenges to actions which occurred during the
grievance procedure was in that process itself. It is inappropriate to
now attempt to use the EEO process to collaterally attack actions which
occurred within the grievance process.
Accordingly, the agency's decision dismissing complainant's complaint
in this matter is hereby affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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 (S0408)
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 (Z1008)
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
November 10, 2009
__________________
Date
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0120092804
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120092804