01A20133_r
09-05-2002
Carla A, Cross, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Carla A. Cross v. United States Postal Service
01A20133
September 5, 2002
.
Carla A, Cross,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A20133
Agency No. 1-l-681-0032-01
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated August 31, 2001, 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., and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq.
On March 1, 2001, complainant initiated contact with an EEO Counselor.
Informal efforts to resolve her concerns were unsuccessful.
In her formal complaint, complainant alleged that she was subjected to
unlawful employment discrimination on the bases of disability and in
reprisal for prior protected activity. Specifically, complainant claimed
that on February 12, 2001, she was informed by the agency personnel
department that she would have to file a claim through Labor Relations
to receive administrative leave for the time she served on suspension
(April 4, 2000 through December 27, 2000). Complainant noted that her
union believed that management's act of suspending her was punitive
rather than corrective in nature.
The agency dismissed the claim for failure to state a claim and on
the grounds of untimely EEO Counselor contact under EEOC Regulation 29
C.F.R. � 1614.107(a)(1) and (2). Regarding the initial EEO contact, the
agency determined that complainant had or should have had a reasonable
suspicion regarding receipt of administrative leave as early as April
2000, when a grievance she filed contained, as a requested remedy,
that all absences from April 4, 2000, be charged as Administrative Leave.
The record shows that complainant filed a grievance on April 15,
2000, regarding the suspension, and for corrective action requested in
pertinent part that �[a]ll absences from 4/4/00 to date of resolution
be charged as administrative leave.�
We agree with the agency that complainant did not timely contact an
EEO Counselor. The record reflects that complainant filed a grievance
on April 15, 2000, in which she specifically requested that she be given
administrative leave for the period of her suspension. Complainant was
aware, or should have been aware, that the alleged discriminatory matter
had occurred at least by that time and so should have contacted an EEO
Counselor within 45 days from that date, pursuant to EEOC Regulation 29
C.F.R. � 1614.105(a)(1); however, complainant did not do so until March
1, 2001, over 10 months later. Complainant has failed to present adequate
justification pursuant to 29 C.F.R. �1614.105(a)(2), for extending the
limitation period beyond forty-five days. Accordingly, the agency's
decision to dismiss the complaint for failure to initiate contact with
an EEO Counselor in a timely fashion was proper and is AFFIRMED.
Because we affirm the agency's dismissal for the reason stated herein,
we find it unnecessary to address alternative dismissal grounds.
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
September 5, 2002
__________________
Date