01A23712_r
10-09-2002
Virginia Bowe, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Virginia Bowe v. United States Postal Service
01A23712
October 9, 2002
.
Virginia Bowe,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A23712
Agency No. 4B-020-0031-02
DECISION
The Commission finds the agency's May 31, 2002 decision dismissing
complainant's complaint for untimely EEO Counselor contact proper pursuant
to 29 C.F.R. � 1614.107(a)(2). Complainant alleges discrimination
on the basis of sex when she was sexually harassed by her supervisor.
Specifically, complainant contends that her supervisor, on or about April
10, 2001, motioned her into his office, �pulled [her] close to him,
grabbed [her] rear end and asked [her] to �help him out.'� On April
11, 2001, complainant contends that her supervisor again asked her
to �help him out,� indicating that if she did, he would move her to a
higher position. He then began �making sexual gestures towards [her],
grabbing himself and coming toward her . . . rubbing [her] hands and
said he wanted to �lick her pussy.'� The agency dismissed complainant's
complaint finding that her July 27, 2001 EEO Counselor contact was beyond
the 45-day limitation period.<1> The Commission agrees that complainant's
initial contact of an EEO Counselor was beyond the 45-day time limit.
Complainant argues that her complaint was improperly dismissed because:
(1) she was not notified of the limitation period, and (2) she was
mentally incapacitated during the relevant time frame. We do not find
complainant's argument that she was unaware of the time limitations to
be persuasive. According to an affidavit dated August 7, 2002, by an
office clerk, EEO posters containing information on contacting an EEO
Counselor (including the 45-day time limit) were present during the
time in question. Therefore, we find that complainant had constructive
knowledge of the guidelines for initiating EEO Counselor contact.
We also find complainant's second argument regarding her mental capacity
to be unpersuasive. Complainant has failed to show that she was so
incapacitated that she could not meet the regulatory time limitations.
The agency's decision dismissing complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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 9, 2002
__________________
Date
1Although the EEO Counselor's report shows
complainant's initial contact occurred on January 31, 2002, the agency
used July 27, 2001 as the date of EEO Counselor contact. The agency
used this date because the EEO office was notified, through a carbon
copied letter to the Commonwealth of Massachusetts Commission Against
Discrimination, that complainant claimed to be sexually harassed.