0120091353
06-05-2009
Deana B. Edwards, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Deana B. Edwards,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091353
Agency No. 4H350000809
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated January 2, 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.
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 and for failure to state a claim.
In her complaint, complainant alleged that she was subjected to
discrimination on the basis of reprisal for prior protected EEO activity
under Title VII of the Civil Rights Act of 1964 when (1) on August 18,
2008, her supervisor harassed and bullied her and followed her on her
route; (2) on the same date she was told she was not allowed to park
on in spaces designated for the postmaster and clerks. In her formal
complaint, complainant added a third claim, that the agency refused to
pay "back tracking time" to her.
The record discloses that with respect to claims 1 and 2, the alleged
discriminatory events occurred on August 18, 2008, but complainant
did not initiate contact with an EEO Counselor until November 4,
2008, which is beyond the forty-five (45) day limitation period.
On appeal, complainant has presented no persuasive arguments or evidence
warranting an extension of the time limit for initiating EEO Counselor
contact. Complainant submits documents indicated that she suffered
from anxiety. We have consistently held, in cases involving physical or
mental health difficulties, that an extension is warranted only where an
individual is so incapacitated by his condition that he is unable to meet
the regulatory time limits. See Davis v. United States Postal Service,
EEOC Request No. 05980475 (August 6, 1998); Crear v. United States Postal
Service, EEOC Request No. 05920700 (October 29, 1992). The information
submitted does not indicate that complainant was so incapacitated that
she could not meet the time frames. Further, with respect to claim 3,
complainant did not provide any specific times frames. In her appeal,
she again mentions not being paid for back tracking while others were, but
again, does not give time frames. Thus, it is impossible to determine if
any such claims occurred with 45 days of her counselor contact, especially
given that complainant states she was off from work from August 25,
2008 through November 18, 2008. As such, the Commission agrees with the
agency that the matter is too vague to state a viable claim of reprisal.
Accordingly, the agency's final decision dismissing complainant's
complaint is 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
June 5, 2009
__________________
Date
2
0120091353
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120091353