0120100783
06-03-2010
Elia Viveros, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Elia Viveros,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120100783
Agency No. 4F913014509
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated October 30, 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.
In her complaint, complainant alleged that she was subjected to
discrimination on the bases of race (Hispanic), sex (female), and
reprisal for prior protected EEO activity when, effective April 14,
2009, she was removed from her position with the agency.
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.
In the instant matter, complainant does not allege that she was unaware of
the time limitation for seeking EEO counseling, nor does she indicate that
she was prevented by reasons beyond her control from timely contacting
an EEO Counselor regarding her concerns. Rather, complainant contends
that she never received the agency's Notice advising her that she had
been removed from the agency for failure to follow instructions and
for being absent without leave. The agency contends that the Notice
was mailed on March 13, 2009 to complainant's address of record and
received on April 8, 2009. The agency further indicates that even if
complainant never received the agency's Notice of her removal as she
alleges, complainant became aware of the agency's removal action on
May 1, 2009 when she was advised by her supervisor that she had been
terminated and that she needed to retrieve her belongings from her locker.
Complainant further acknowledges on appeal that she was advised on May 1,
2009 that she had been terminated and that she would need to retrieve
her belongings from her locker. However, complainant argues that the
May 14, 2009 effective date of her termination makes her June 29, 2009
EEO Counselor contact timely in accordance with EEOC Regulations.
Upon review, the Commission is not persuaded by complainant's arguments
on appeal. Specifically, we note that the record contains a copy of
the Notification of Personnel action indicating that complainant's
removal became effective April 14, 2009; more than 45 days before
complainant's EEO Counselor contact on June 29, 2009. Moreover, the
record indicates that complainant filed a grievance dated May 1, 2009
regarding her termination from the agency through the agency's negotiated
grievance procedure. We note therefore that filing an internal grievance
regarding her removal does not toll the time limits for contacting an EEO
Counselor. The Commission has consistently held that neither internal
appeals nor informal efforts to challenge an agency's adverse action,
nor the filing of a grievance do not toll the running of the time limit to
contact an EEO Counselor. See Hosford v. Department of Veterans Affairs,
EEOC Request No. 05890038 (June 9, 1989); Miller v. United States Postal
Service, EEOC Request No. 05880835 (February 2, 1989).
Accordingly, the agency's final decision dismissing complainant's
complaint is affirmed for the reasons set forth herein.
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 3, 2010
__________________
Date
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0120100783
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120100783