0120082105
02-06-2009
Trina L. Ferguson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Trina L. Ferguson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120082105
Agency No. 1H-335-0009-08
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final decision dated January 24, 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.
On October 18, 2007, complainant initiated EEO Counselor contact.
Informal efforts to resolve her concerns were unsuccessful.
On January 10, 2008, complainant filed the instant formal complaint.
Therein, complainant alleged that she was subjected to discrimination
on the basis of race when:
on or about April 28, 2007, she received a Notice of Removal for Failure
to Maintain a Regular Work Schedule.
In its January 24, 2008 final decision, the agency dismissed
complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(2) on
the grounds of untimely EEO Counselor contact. The agency determined
that complainant's initial EEO contact occurred on October 18, 2007,
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 October 18, 2007.
The agency determined that EEO posters addressing the 45-day requisite
time period were on display in complainant's workplace during the time.
The agency also dismissed the instant complaint on alternative grounds
of failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
The agency determined that a review of her complaint, complainant
specifically alleged discrimination pending an arbitration hearing on the
instant complaint. The agency further determined that complainant was
lodging a collateral attack on the negotiated grievance procedure; and
that the proper forum for complainant to challenge actions which occurred
through the negotiated grievance procedure is through that forum itself.
The record contains a copy of Acting Manager Distribution Operations
(A1)' affidavit dated January 15, 2008, 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 posted in the workplace. Specifically, we note
in his affidavit, A1 states "I can attest that a version of Poster 72
was posted in this facility during April 24, 2007, and is currently
on display." The Commission determines that complainant provides no
persuasive justification for the delay in initiating EEO Counselor
contact.
Because we affirm the agency's dismissal of the instant complaint on
the grounds of untimely EEO Counselor contact, we find it unnecessary
to address it on alternative grounds (i.e. failure to state a claim).
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
February 6, 2009
__________________
Date
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0120082105
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120082105