0120090947
05-07-2009
Tameka N. Travis, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Tameka N. Travis,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090947
Agency No. 1J484002908
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 1, 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.
In her complaint, complainant alleged that she was subjected to
discrimination on the bases of sex (female), disability (left wrist),
and reprisal for prior protected EEO activity under Title VII of the
Civil Rights Act of 1964 when (1) from October 2007 through August
2008 she was subjected to a hostile work environment; (2) she received
a notice of removal with an effective date of May 2, 2008; and (3) on
June 25, 2008, she was coerced into resigning. The agency dismissed the
complaint pursuant to 29 C.F.R. � 1614.107(a) (1) and (2), for untimely
EEO counselor contact and failure to state a claim. The instant appeal
followed.
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.
Briefly, the record shows that complainant was issued a notice
of removal, effective May 2, 2008, alleging failure to adhere to
attendance regulations. During this same period, complainant was
accused of falsifying a Thrift Savings Plan (TSP) loan application by
forging the signature of a supervisor's wife. As a result, there was
an Office of Inspector General (OIG) investigation into the matter.
When the OIG report came out, management representatives suggested
that complainant might want to resign in lieu of the pending removal.
Complainant refused to resign.
With respect to the letter of removal, the record discloses that the
alleged discriminatory event occurred on May 2, 2008, but complainant
did not initiate contact with an EEO Counselor until August 4, 2008,
which is beyond the forty-five (45) day limitation period. Complainant
had previously filed an EEO complaint in 2006 and the agency provided
statements that EEO posters containing the relevant timeframes were
posted in the facility where complainant was employed. Therefore, we
conclude that complainant knew or should have known about the 45-day
limitation period.
With regard to complainant's harassment claim, the Commission notes
that although complainant contacted an EEO counselor on August 4,
2008, she did not raise the claims of harassment with the counselor
at that time. Rather, she raised them for the first time in her formal
complaint filed on November 10, 2008. Thus, the Commission finds that
claim 1 was also untimely raised. On appeal, complainant has presented
no persuasive arguments or evidence warranting an extension of the time
limit for initiating EEO counselor contact. Complainant argues the merits
of her claims, and includes numerous documents. The Commission is not
convinced, given complainant's previous EEO activity, that she was not
aware of the time limit.
With respect to the issue of being coerced to resign, the record
clearly establishes that complainant refused to resign. Therefore, the
Commission finds that the matter fails to state a claim under the EEOC
regulations because complainant failed to show that she suffered harm
or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. See Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994).
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
2
0120090947
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120090947