Toya T. Simpson, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 22, 2009
0120092939 (E.E.O.C. Oct. 22, 2009)

0120092939

10-22-2009

Toya T. Simpson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Toya T. Simpson,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120092939

Agency No. 1J-632-0012-09

DECISION

Complainant filed a timely appeal with this Commission from the final

agency decision dated May 27, 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.

On January 21, 2009, complainant initiated EEO Counselor contact.

Informal efforts to resolve her concerns were unsuccessful.

On May 7, 2009, complainant filed the instant formal complaint. Therein,

complainant alleged that she was subjected to discrimination on the

basis of sex (female) when:

on November 3, 2008, an employee junior to her was allowed to begin

training, which resulted in her receiving less seniority than him as a

clerk.1

In its May 27, 2009 final decision, the agency dismissed complainant's

complaint on the grounds of untimely EEO Counselor contact, pursuant to

29 C.F.R. � 1614.107(a)(2). The agency determined that complainant's

initial EEO contact occurred on January 21, 2009, which it found to be

beyond the 45-day limitation period. The agency further determined that

complainant had or should have had reasonable suspicion of unlawful

employment discrimination prior to January 21, 2009. The agency

determined that EEO posters addressing the 45-day requisite time period

were on display in complainant's workplace during the time.

The record contains a copy of the Plant Support Manager (PSM)'s affidavit

dated May 14, 2009 indicating that EEO posters, including applicable

time limits, were posted during the relevant time. The record also

contains a copy of EEO Poster 72 outlining the 45-day limitation period

for contacting an EEO Counselor.

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.

Here, complainant did not contact an EEO Counselor until more than 45

days after the incident in question. The agency has indicated that EEO

posters are properly placed in the workplace. Specifically, we note in

his affidavit, PSM states "I have been in Plant Support Manager in this

office since 2008. EEO Poster 72, December 2005 edition is displayed

on the first floor near the employee entrance bulletin board encase in

glass and locked." The Commission determines that complainant provides

no persuasive justification for the delay in initiating EEO Counselor

contact.

Accordingly, the agency's dismissal of the instant 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

October 22, 2009

__________________

Date

1 The record reflects that according to the agency, complainant

specifically disputed why named employee junior to her was allowed to

start training before her. The agency determined that a review of the

EEO Counselor's Report indicated the named employee began his training on

November 3, 2008; therefore, this date was recognized as the alleged date

of discrimination. The agency further stated that the date of October 2,

2008 cited in the instant complaint was the date of an in-house job fair

regarding switching crafts, in which complainant learned that eight

people would be chosen by seniority to train and become clerks.

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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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