01A21200
03-28-2002
Michelle L. Bavin, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Michelle L. Bavin v. United States Postal Service
01A21200
March 28, 2002
.
Michelle L. Bavin,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A21200
Agency No. 4C-150-0004-02
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 26, 2001, 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. In her
complaint, complainant alleged that she was subjected to discrimination
on the bases of sex (female) and in reprisal for prior EEO activity when:
On August 7, 2001, her supervisor harassed her and told her to go
home early.
The agency dismissed the complaint for untimely EEO Counselor contact
pursuant to 29 C.F.R. � 1614.105(a)(1). Upon review, the Commission
finds that complainant's complaint was properly dismissed.
The record discloses that on August 31, 2001, complainant filed a
grievance concerning the August 7, 2001 incident, through the agency's
negotiated grievance procedure. The record establishes further that
thereafter, on September 27, 2001, complainant contacted an EEO Counselor
regarding her concerns. After informal efforts to resolve her concerns
were unsuccessful, complainant filed the instant formal complaint on
November 6, 2001.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints
of discrimination be brought to the attention of the EEO Counselor
within forty-five days of the date of the alleged discriminatory event.
Generally, the agency may dismiss claims that fail to comply with this
time limit. See 29 C.F.R. � 1614.107(a)(2). However, EEOC Regulation
29 C.F.R. � 1614.105(a)(2) also provides for extensions of the time
limit 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.
We find that complainant's EEO Counselor contact on September 27, 2001,
was untimely pursuant to 29 C.F.R. � 1614.105(a)(1). Moreover, we note
that internal agency procedures, union grievances, and other remedial
processes do not toll the time limit for contacting an EEO Counselor.
See Kramer v. United States Postal Service, EEOC Appeal No. 01954021
(October 5, 1995). On appeal, complainant has presented no persuasive
arguments warranting an extension of the time limit for initiating EEO
Counselor contact. Accordingly, the agency's final decision dismissing
complainant's complaint is hereby AFFIRMED for the reasons set forth
herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
March 28, 2002
__________________
Date