0120091320
06-11-2010
Joyce Mason,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120091320
Agency No. 1K-234-0036-08
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision1 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 the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
For the following reasons, the Commission AFFIRMS the agency's final
decision dismissing complainant's complaint.
ISSUE PRESENTED
The issue presented is whether the agency properly dismissed complainant's
complaint.
BACKGROUND
At the time of events at issue, complainant was a Distribution Clerk
at the agency's Norfolk, Virginia Post Office. Formal Complaint, at 1.
In her formal complaint filed on December 17, 2008, complainant alleged
that she was subjected to discrimination on the bases of national origin
(Trinidadian), sex (female), and age (51) when, on July 25, 2008,
she was subjected to a search of her locker and personal property by
management.2
The agency dismissed complainant's complaint for untimely EEO Counselor
contact pursuant to 29 CFR � 1614.107(a)(2). Agency's Decision, at 3.
The agency found that complainant did not contact an EEO Counselor until
September 16, 2008, which was 53 days after the alleged discriminatory
incident occurred on July 25, 2008. Id. at 2. In addition, the agency
found that complainant provided no evidence that she was unaware of
the time limit for contacting an EEO Counselor. Id. at 3. Further,
the agency noted that the EEO Counselor's Report documented that EEO
Poster 72 is on display in the Norfolk Post Office. Id.
CONTENTIONS ON APPEAL
On appeal, complainant asserts that she was not aware of the time limit
for contacting an EEO Counselor because "due to extreme stress that was
a result of the incident at work, I have been under continuous doctor's
care." Complainant's Appeal Brief, at 1. Complainant submits the
following documentation regarding her medical condition: (1) a December
22, 2008 letter from her Employee Assistance Program (EAP) counselor, (2)
a U.S. Department of Labor (DOL) Certification of Health Care Provider
(Family and Medical Leave Act of 1993) form stamped as received by the
FMLA Coordinator and the Richmond District Health Unit on August 19,
2008, and (3) a December 2, 2008 letter from the DOL's Office of Workers'
Comp Programs (OWCP). Id. at Exhs. A-C.
In response, the agency requests that we affirm its final decision.
Agency's Appeal Brief, at 1.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) provides, in pertinent part,
that the agency shall dismiss a complaint that fails to comply with
the applicable time limits contained in � 1614.105, unless the agency
extends the time limits in accordance with � 1614.604(c).
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the EEO Counselor
within 45 days of the date of the matter alleged to be discriminatory or,
in the case of a personnel action, within 45 days of the effective date
of the action.
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. 29 C.F.R. � 1614.105(a)(2).
We have consistently held, in cases involving physical or mental health
difficulties, that an extension is only warranted where an individual
is so incapacitated by her condition that she is unable to meet the
regulatory time limits. See Crear v. United States Postal Service,
EEOC Request No. 05920700 (October 29, 1992); Weinberger v. Department
of the Army, EEOC Request No. 05920040 (February 21, 1992); Hickman
v. Department of the Navy, EEOC Request No. 05910707 (September 30,
1991); Johnson v. Department of Health and Human Services, EEOC Request
No. 05900873 (October 5, 1990).
In the instant case, we find that the agency properly dismissed
complainant's complaint for untimely EEO Counselor contact. The record
discloses that the alleged discriminatory event occurred on July 25,
2008. Complainant therefore was required to initiate contact with an
EEO Counselor by September 8, 2008 to fall within the 45-day limitation
period, but complainant did not initiate contact until September 16, 2008.
EEO Counselor's Report, at 1.
Although the record shows that complainant had been out on sick leave,
which she attributes to the stress caused by the incident, and complainant
argues on appeal that she was unaware of the time limit because she was
under a physician's care for "extreme stress," we find that an extension
of the time period is not warranted because complainant has failed
to establish that she was so incapacitated that she was incapable of
meeting the 45-day limitation period for timely EEO Counselor contact.
Information for Pre-Complaint Counseling, at 2; Complainant's Appeal
Brief, at 1. We note that the December 2, 2008 OWCP letter to complainant
referenced materials submitted by complainant, including documents dated
July 28, 2008, July 29, 2008, and August 13, 2008. Complainant's Appeal
Brief, at Exh. C. As it appears that complainant was capable of pursing
her OWCP claim prior to September 16, 2008, we reason that it is likely
that complainant was similarly capable of pursuing her EEO claim by
contacting the EEO Counselor by September 8, 2008.
Further, based on a review of the record, we find that complainant
had constructive knowledge of the applicable time limit. See Santiago
v. United States Postal Service, EEOC Request No. 05950272 (July 6, 1995).
The record includes a January 6, 2009 affidavit from an agency employee
indicating that an EEO Poster, providing notice of the 45-day time limit
for contacting an EEO Counselor, had been on display at complainant's
workplace for at least 2 years.
CONCLUSION
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 11, 2010
Date
1 We note that the agency's final decision is undated and the record
does not include information about when the decision was issued.
2 Complainant alleged that the unauthorized search was conducted
after a co-worker accused her of theft. Formal Complaint, at 1.
It is unclear whether complainant has now returned to work, but she
stated in her December 17, 2008 formal complaint that she had been out
on sick leave since the incident because of the stress that it caused.
Formal Complaint, at 1; Information for Pre-Complaint Counseling, at 2.
??
??
??
??
2
0120091320
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120091320