0120161070
04-12-2016
Odilia M.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southwest Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Odilia M.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120161070
Agency No. 1G-754-0002-16
DECISION
Complainant filed a timely appeal with this Commission from the Agency's December 1, 2015 decision, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. We accept the appeal.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Clerk at the Agency's DP & DC facility in Dallas, Texas. On December 14, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American), disability ("knees"), and age (52) when, on June 7, 2015, Complainant was told to clock out.
Complainant returned to work at the job following an on-the-job injury. Although she was on the employer's payroll during her ten-year absence, she had not been physically at the facility. She was assigned to a position in the Nixie Unit, repairing torn envelopes. On May 26, 2015, while on the job, she complained of having chest pains and was taken to the hospital. Approximately, two weeks later, Complainant came in to fill out an accident report after her doctor told that she might have lifted something heavy that caused her to have the chest pain. The plant head told her to leave and that the walker she was using that day was a safety hazard on the floor.
The record discloses that the alleged discriminatory event occurred on June 7, 2015, but Complainant did not initiate contact with an EEO Counselor until October 5, 2015, which is beyond the forty-five (45) day limitation period.
The Agency dismissed the claim, reasoning that her "request for pre-complaint counseling was made more than 45 days after the issues issue alleged to be discriminatory." The Agency also found that Complainant did not claim that she was unaware of the time limit for contacting an EEO Counselor. The Agency stated that the record shows that the EEO poster was appropriately displayed at the facility.
ANALYSIS AND FINDINGS
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.
On appeal, Complainant states that she "did not make a claim of unawareness of time limits because she was unaware of time limits under her circumstances." She states that the Agency should have treated her as a new employee and provided her new employee training.
We find that Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact regarding the June 7, 2015 incident. The record contains a sworn statement that an EEO poster was posted on a bulletin board at the facility where Complainant was employed. The poster had the time limits for contacting an EEO counselor and information on initiating the EEO process. It is well-established by Commission precedent that EEO posters on display in the workplace constitute a presumption of constructive notice of EEO time limits. Drake v. Department of Justice, EEOC Appeal No. 0120131871 (August 5, 2013); Tutwittler v. U.S. Postal Service, EEOC Appeal No. 0120121325 (April 18, 2013); Pride v. U.S. Postal Service, EEOC Request No. 05930134 (August 19, 1993). Here, Complainant has failed to rebut this presumption.
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.
CONCLUSION
Accordingly, we AFFIRM the Agency's final decision dismissing Complainant's complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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), at Chap. 9 � VII.B (Aug. 5, 2015). 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 (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
April 12, 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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