0120152364
01-08-2016
Kimber L.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kimber L.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120152364
Agency No. 4J604008415
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated June 1, 2015, dismissing her complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a (probationary) City Carrier Assistant Grade 01/BB at the Agency's DeKalb Post Office in DeKalb, Illinois.
On May 21, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of disability (severe ankle sprain) when:
On or around September 16, 2014, the Postmaster forced Complainant to resign from her position when he failed to provide her with a reasonable accommodation for her disability.
Complainant was hired on August 3, 2014. On August 26, 2014, Complainant tripped on a crack in a driveway while completing her mail route and severely sprained her ankle. She could not put any weight on it and was transported by ambulance for medical attention. Complainant received medical approval to return to work on September 5, 2014 and began working on or around September 9, 2014. On September 12, 2014, Complainant worked for a full day, but despite taping her ankle, she was in pain and could not put her full weight on it. Complainant informed the Postmaster and requested an indoor window associate or distribution clerk position, but he said that he could not transfer her out of her mail carrier position. He directed her not to come in the next day and said that he would follow up by phone.
On September 16, 2014, Complainant alleges that she was called into work again and the Postmaster provided her with a choice to resign or be fired. She further alleges that the Postmaster informed her that if she was fired, she could never apply for a position with the Agency again, so Complainant resigned.
Complainant, through her non-legal representative, appealed her "resignation" through the Merit Systems Protection Board (MSPB) on November 26, 2014, seventy one (71) days after the incident. On January 26, 2015 the MSPB dismissed Complainant's appeal (docketed as CH-0353-15-0110-I-1) for lack of jurisdiction. Complainant, via her representative, initiated EEO counseling on February 17, 2015.
On June 1, 2015, the Agency issued a final decision dismissing the complaint pursuant to 29 C.F.R. � 1614.107(a)(2), due to untimely contact with an EEO counselor, citing Complainant's contact on February 17, 2015, one hundred fifty-four (154) days since the incident.
ANALYSIS AND FINDINGS
When the MSPB has denied jurisdiction in a "mixed case" (i.e. a complaint that can also be appealed to the EEOC), upon receipt of that decision, in accordance with 29 C.F.R. � 1614.302(a) the agency shall notify petitioner of her right to contact an EEO counselor within forty five (45) days, and to file an EEO complaint, subject to 29 C.F.R. � 1614.107. Under 29 C.F.R. � 1614.107(a)(2) an "aggrieved party" must contact an EEO Counselor within 45 days of the date of the alleged discriminatory act. For purposes of EEO processing, the date on which the person filed her appeal with the MSPB shall be deemed to be the date of initial contact with the counselor. See 29 C.F.R. � 1614.302(b)
We agree with the Agency in that Complainant's complaint must be dismissed for untimely contact with an EEO counselor. However, we note that the Agency erroneously attributes February 17, 2015 as Complainant's date of initial EEO contact. For the reasons stated above, Complainant's initial contact date was November 26, 2014, the date she appealed to the MSPB. As the date of the discriminatory event was September 16, 2014, Complainant's last possible day to timely contact an EEO counselor within the 45 day limit was October 31, 2014. Attributing Complainant's initial contact with an EEO counselor to November 26, 2015, the date of her MSPB appeal, necessarily results in a finding of untimely EEO contact.
Complainant argues that because the MSPB issued a decision on the matter and did not reference timeliness as the reason for its dismissal, the EEOC should also overlook Complainant's untimely EEO contact. We do not find this to be a compelling justification for waiving the timeliness requirement.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 tends 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), at 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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
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's signature
Carlton M. Hadden, Director
Office of Federal Operations
January 8, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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