0120092909
11-13-2009
Tamara Weddle, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Tamara Weddle,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120092909
Agency No. 4G-770-0105-09
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated May 28, 2009, dismissing her formal 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.
During the period at issue, complainant was employed as a Clerk at the
agency's Sugar Land Post Office in Sugar Land, Texas.
On January 29, 2009, complainant initiated EEO Counselor contact.
Informal efforts to resolve her concerns were unsuccessful.
On May 12, 2009, complainant filed the instant formal complaint. Therein,
complainant alleged that from June 13, 2007 through January 4, 2008, she
was subjected to harassment and a hostile work environment on the bases of
race, sex, disability, age and retaliation in regard to work assignments;
comments; yelling; wrongful accusations and threats; and subsequently
from January 5, 2008 through April 6, 2008, she was put off the clock.
In its May 28, 2009 final decision, the agency dismissed complainant's
formal complaint on the grounds of untimely EEO Counselor contact,
pursuant to 29 C.F.R. 1614.107(a)(2). The agency also dismissed the
formal complaint on the alternative grounds of failure to state a claim,
pursuant to 29 C.F.R. � 1614.107(a)(1) and on the grounds of mootness,
pursuant to 29 C.F.R. � 1614.107(a)(5).
On appeal, complainant, through her attorney, asserts that the agency's
final decision dismissing her complaint is improper. While complainant
acknowledges she filed a formal grievance "due to the continuous and
ongoing harassment," she asserts that she has been subjected to ongoing
harassment by management officials long after the two named MDOs left
the Sugar Land Post Office. Complainant further states "there was no
notice or posters posted at the Sugar Land Post Office to provide notice
to complainant or impute knowledge to complainant of her rights under
Title VII."
The record in this case contains a PS Form 2568-B (EEO Investigative
Affidavit), dated May 15, 2009, prepared by an agency Supervisor.
The Supervisor provided the following statement:
I, [supervisor's name] am the Supervisor at the Sugar Land
office. I have been supervisor in this office since
June 2006. EEO Poster 72, December 2005 edition was displayed on
the west side main employee entrance on the wall. Poster 72 was
posted since January 2006, and was on display on January
6, 2006. 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.
Untimely EEO Counselor Contact
EEOC Regulation 29 C.F.R. � 1614.107(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's regulations, however provide that the
time limit will be extended when the complainant shows that he or she
was not notified of the time limits and was not otherwise aware of the,
that he or she did not know and reasonably should not have known that
the discriminatory matter or personnel action occurred, that despite
due diligence he or she was prevented by circumstances beyond his or her
personal control from contacting the counselor within the time limits, or
for other reasons considered sufficient by the agency or the Commission.
See 29 C.F.R. � 1614.107(a)(2).
The agency properly dismissed complainant's complaint on the grounds
of untimely EEO Counselor contact. The Commission determines that
there is sufficient evidence of record to establish that complainant had
constructive notice of the time limit for contacting an EEO Counselor.
Complainant's initial EEO contact in January 2009, was more than
forty-five days after the last discriminatory event raised in her formal
complaint purportedly occurred. Complainant has provided no persuasive
justification for extending the limitation period beyond forty-five days.
Accordingly, the agency's decision to dismiss complainant's complaint
for failure to initiate contact with an EEO Counselor in a timely fashion
was proper and is AFFIRMED.
Because we affirm the agency's dismissal for the reason stated herein,
we find it unnecessary to address alternative dismissal grounds.
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
November 13, 2009
__________________
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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