0120091300
05-07-2009
Shelomi K. Beers, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Shelomi K. Beers,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091300
Agency No. 1J491001108
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 23, 2008, 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
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. � 791 et seq. 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.
In her complaint, complainant alleged that she was subjected to
discrimination on the bases of race (unspecified) national origin
(unspecified), sex (female), religion (unspecified), disability
(unspecified), and reprisal for prior protected EEO activity when:
1. From November 2007 to June 30, 2008, she was subjected to sexual
harassment and non-sexual harassment, including being accused of being
a racist on April 5, 2008; and accused of driving by her aunt's house
about the time she was going to work on May 14, 2008;
2. In March 2008, a clerk told her she would suffer no loss for being
terminated;
3. On March 6, 2008, she was fired from the postal service.
4. On March 10, 2008, the agency stated in mediation that complainant
lied;
5. On March 11, 2008, complainant was reinstated to the postal service
and subsequently terminated on June 30, 2008 before she took her 473
exam on July 1, 2008 and before she had served the remainder of her 360
day appointment.
The record discloses that the most recent alleged discriminatory event
occurred on June 30, 2008,1 but complainant did not initiate contact with
an EEO Counselor until September 2, 2008, which is beyond the forty-five
(45) day limitation period. 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. The Commission has adopted a "reasonable
suspicion" standard (as opposed to a "supportive facts" standard) to
determine when the forty-five (45) day limitation period is triggered.
See Howard v. Department of the Navy, EEOC Request No. 05970852 (February
11, 1999). Thus, the time limitation is not triggered until a complainant
reasonably suspects discrimination, but before all the facts that support
a charge of discrimination have become apparent.
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.
On appeal, complainant has presented no persuasive arguments or evidence
warranting an extension of the time limit for initiating EEO Counselor
contact. Moreover, the record indicates that EEO posters bearing the
relevant time frames for contacting an EEO Counselor were on display
at complainant's workplace. The Commission finds that complainant had
constructive knowledge of the 45-day time frame and failed to exercise
due diligence in protecting his EEO claims.
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
May 7, 2009
__________________
Date
1 We are unpersuaded by complainant's contention that her complaint should
somehow be rendered timely because she received a leave adjustment check
on September 18, 2008, that she had been owed since March 2008.
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2
0120091300
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120091300