Cynthia M. Brown, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 26, 2009
0120083905 (E.E.O.C. Feb. 26, 2009)

0120083905

02-26-2009

Cynthia M. Brown, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Cynthia M. Brown,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120083905

Agency No. 1H-378-0012-08

DECISION

Complainant filed a timely appeal with this Commission from the final

agency decision dated August 9, 2008, dismissing her formal 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.

On May 19, 2008, complainant initiated EEO Counselor contact. Informal

efforts to resolve her concerns were unsuccessful.

In a formal complaint filed on July 31, 2008, complainant alleged that

she was subjected to discrimination on the basis of reprisal for prior

protected EEO when she was given an investigative interview, subsequently

issued a Letter of Warning (LOW) on March 24, 2008, and then received

written verification on April 21, 2008 that there was no present written

policy stating employees cannot leave the premises on break.

In the instant final decision, the agency dismissed the formal complaint

pursuant to 29 C.F.R. � 1614.107(a)(2), on the grounds of untimely EEO

Counselor contact.

The record reflects that complainant had, or should have had, a reasonable

suspicion of unlawful employment discrimination on March 24, 2008.

However, complainant's initial EEO contact on May 19, 2008, occurred

after the expiration of the 45-day limitation period for making timely EEO

contact. Complainant has failed to present adequate justification for

extending the limitation period beyond 45 days. Accordingly, the agency's

decision to dismiss appellant's 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 of the instant complaint for

the reason stated herein, we will not address the agency's alternative

dismissal grounds.

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

February 26, 2009

__________________

Date

2

0120083905

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

3

0120083905