0120112211
12-07-2011
Sharon L. Stem, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Sharon L. Stem,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120112211
Agency No. 4C-170-0020-11
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated February 7, 2011, 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, we AFFIRM the
Agency’s final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a Distribution Window Clerk at the Agency’s Processing & Distribution
Center (P&DC) in Lehigh Valley, Pennsylvania. On October 4, 2010, the
National Reassessment Process Coordinator determined that there was no
work available for Complainant, and she was sent home. On January 20,
2011, Complainant filed a formal complaint alleging that the Agency
subjected her to discrimination on the bases of disability and age when
she was sent home and when the following harassing incidents occurred:
1. In 2008, her manager harassed her by insisting that she retire when
he was charged with finding work for her within her medical restrictions;
2. In February 2009 her manager harassed her daily by humiliating her
in front of other people by talking down to her;
3. She overheard her manager and the secretary laughing about the things
the secretary was doing and saying to her;
4. From February 2009 through April 12, 2009 another supervisor insisted
that she cut paper placards with scissors outside of her medical
restrictions, and screamed at her indicating that she was a problem;
5. In February 2009 she was told by her manager's secretary that there
was no work for her and that she could not use the Xerox machine without
permission;
6. On August 2, 2010 the secretary opened interoffice mail and pulled out
contents without replacing them and the next night, management informed
everyone that all xeroxing was to be done by the secretary or management;
7. On unspecified dates, she was refused access to the computer by
the secretary;
8. On unspecified dates, the secretary was verbally abusive to her and
management observed it and laughed;
9. Another supervisor has screamed at her many times, including saying
“How dare you stay home because of the snow. You could have made it
to work!”
Because the disability claim concerning being sent home implicated the
McConnell1 class action, the Agency held that claim in abeyance under
the original Agency No. 4C-170-0013-11. With regard to the age claim
concerning being sent home, the Agency processed that claim under Agency
No. 4C-170-0019-11 and dismissed it for untimely EEO Counselor contact.
The Commission upheld the dismissal on appeal. Stem v. U.S. Postal Serv.,
EEOC Appeal No. 0120112210 (Nov. 18, 2011).
Finally, the Agency processed the instant claim of disability and age
based harassment under Agency No. 4C-170-0020-11 and also dismissed
it for untimely EEO Counselor contact. The Agency determined that the
last alleged discriminatory incident occurred on October 4, 2010, when
Complainant was sent home because there was no work available under the
National Reassessment Process, but that Complainant did not initiate EEO
Counselor contact until early December, which was beyond the forty-five
day limitation period. The Agency indicated that because EEO posters
setting forth timeframes were on display in Complainant’s workplace,
she was, or should have been familiar with the forty-five day limitation
period. This appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that on October 4, 2010, she was physically
removed from the facility due to the National Reassessment Process,
and as a result she did not have access to the EEOC Poster displayed
on the wall at the P&DC and was therefore not aware of the time limit.
Complainant further argues that following her removal, she went into
clinical depression and “had great difficulty mentally focusing.
Therefore, I could not get my thoughts together to file the EEO claim
prior to when I did file.”
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.
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.
Upon review of the record, we find that the Agency properly dismissed
this complaint on the grounds of untimely EEO Counselor contact.
Complainant did not initiate EEO Counselor contact until early December
2010, beyond the applicable time limit. The record contains a copy of
the affidavit of the Secretary to the Plant Manager (S1) dated January
11, 2011. Therein, S1 stated that the EEO Poster 72 dated September 2008
“is displayed on bulletin boards located near the employee entrance.
Others are located in the maintenance area, BMEU, and the window section.
Poster 72 has been posted since at least March 2005 and is currently
on display. This poster advises employees of the time requirements
for timely filing an EEO counseling request and the telephone number to
contact to request EEO counseling.” Complaint File at 76. We conclude
that Complainant should have been aware of the relevant time frame for
contacting an EEO Counselor.
Furthermore, although Complainant asserts that the time limit should
be waived due to her medical condition, we have consistently held,
in cases involving physical or mental health difficulties, that an
extension is warranted only where an individual is so incapacitated by
her condition that she is unable to meet the regulatory time limits.
See Davis v. U.S. Postal Service, EEOC Request No. 05980475 (August 6,
1998); Crear v. U.S. Postal Service, EEOC Request No. 05920700 (October
29, 1992). Complainant states that she went into clinical depression
following her removal and had difficulties focusing, and that as a result,
she could not get her thoughts together to make timely EEO contact.
The record, however, does not contain medical documentation indicating
that Complainant was so incapacitated to render her unable to make timely
EEO contact.
Accordingly, we AFFIRM the Agency’s final decision dismissing
Complainant’s claim of harassment on the ground of untimely EEO
Counselor contact.
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 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 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 (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 (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, Director
Office of Federal Operations
December 7, 2011
__________________
Date
1 See Sandra McConnell, et. al. v. U.S. Postal Serv., EEOC Appeal
No. 0720080054 (Jan. 14, 2010).
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0120112211
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120112211