Arlenev.Kimble, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 15, 2004
01a43640 (E.E.O.C. Nov. 15, 2004)

01a43640

11-15-2004

Arlene V. Kimble, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Arlene V. Kimble v. United States Postal Service

01A43640

November 15, 2004

.

Arlene V. Kimble,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A43640

Agency No. 1J-461-0088-03

DECISION

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.

The record reflects that on August 29, 2003, complainant's union and

the agency entered into a Step 2 Settlement, wherein the grievant was

identified by the designation �class action� and whose subject was

listed as �preferred assignments.� The grievance settlement provided

that agency management would abide by Article 37.1.C and Section 9 of

the LMOU [Local Memorandum of Understanding].<1>

On September 11, 2003, complainant contacted an EEO Counselor. The EEO

Counselor's Report indicated that complainant claimed that black female

agency employees have been forced to work in a hostile work environment.

The EEO Counselor's Report further indicated that complainant claimed

that all black female employees are segregated; that their mail is

tagged and checked for accuracy; that they are given extra duties;

sent to undesirable work locations; required to perform heavy manual

labor; and not allowed to perform express mail duties. As a remedy,

complainant requested, in part, compensatory damages and for agency

management to comply with �Article 37.1c of the National Agreement

and Section 9 of the Local Memorandum.� Informal efforts to resolve

complainant's concerns were unsuccessful.

On February 18, 2004, complainant filed a formal complaint, claiming

that she was the victim of unlawful employment discrimination on the

bases of race, sex, national origin, age, disability, and in reprisal

for prior protected activity.

In a final decision dated April 16, 2004, the agency determined that

complainant's complaint was comprised of the claim that beginning in

March 2003, she was denied training in the duties of an express mail

back-up clerk. The agency dismissed the complaint on the grounds

of untimely EEO Counselor contact. The agency noted that complainant

waited until the settlement of a grievance, dated August 29, 2003, before

pursuing the EEO complaint process. claiming that since March 2003,

she has been denied training in duties of an express mail back-up clerk.

On appeal, complainant argues that her formal complaint was improperly

dismissed. In response, the agency argues that the instant complaint

�began as a class action�, but reiterates that complainant waited until

the settlement of a grievance before she initiated EEO counseling on

September 11, 2003.

Complainant stated in her formal complaint that the alleged

discriminatory event occurred �since March 2003� when she unsuccessfully

requested to be trained in various duties relating to her bid run

assignment. Complainant, however, did not initiate contact with an

EEO Counselor until September 11, 2003. The Commission determines

that complainant has not identified any specific incident of unlawful

employment discrimination that purportedly occurred within forty-five

days of her initial EEO contact. Moreover, we note that in her formal

complaint, complainant stated that she had previously filed a grievance

regarding this matter. On appeal, complainant has presented no persuasive

arguments or evidence warranting an extension of the time limit for

initiating EEO Counselor contact.

Accordingly, the agency's final decision dismissing complainant's

complaint is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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 19848,

Washington, D.C. 20036. 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 (S0900)

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 (Z1199)

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 that the Court appoint

an attorney to represent you and that the Court 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 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 15, 2004

__________________

Date

1The record reflects that on September 23,

2003, various agency employees, including complainant, transmitted a

memorandum to their union regarding the agency's purported refusal to

comply with a �class action grievance� regarding preferred assignments

and period checks of mail. The employees also noted that they were

subject to disparate treatment on the bases of race and sex.