01A62429
06-20-2006
Young A. Kim, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Young A. Kim,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A62429
Agency No. 1H-302-0015-06
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated February 17, 2006, 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 December 30, 2005, complainant initiated contact with an EEO Counselor.
Informal efforts to resolve her concerns were unsuccessful. On February 6,
2006, complainant filed the instant complaint, claiming that she was
subjected to unlawful employment discrimination on the bases of race and
sex.
On February 17, 2006, the agency issued a final decision. Therein, the
agency determined that complainant's complaint was comprised of the
following claim:
On December 24, 2005, you were not promoted to the position of
Supervisor, Maintenance Operations (Position # 05-059).
The agency dismissed the instant complaint pursuant to 29 C.F.R. �
1614.107(a)(2), on the grounds of untimely EEO Counselor contact. The
agency determined that despite complainant's assertion that she was not
promoted on December 24, 2005, complainant had, in fact, been informed by
letter dated September 2, 2005, that she was not chosen as one of the final
candidates for the subject position. The agency determined that
complainant had, or should have had, a reasonable suspicion of unlawful
employment discrimination in September 2005, and that her initial EEO
contact on December 30, 2005, is therefore untimely.
On appeal, complainant acknowledges that she was notified of the non-
selection as a final candidate on September 2, 2005, but that it was only
on December 24, 2005, when the identification of the selectee was posted,
that she had the "necessary information needed to file for discrimination."
Complainant was apprised as early as September 2, 2005, that she was not
even considered as a final candidate for the subject position. Complainant
had or should have had a reasonable suspicion of unlawful employment
discrimination at that time. Complainant's assertion that on December 24,
2005, she now had the "necessary information" to pursue the EEO complaint
process is unpersuasive. Waiting until one has "supporting facts" or
"proof" of discrimination before initiating a complaint can result in
untimely EEO Counselor contact. See Bracken v. USPS, EEOC Request No.
05900065 (March 9, 1990).
The agency's final decision dismissing complainant's complaint on the
grounds of untimely EEO Counselor contact 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
June 20, 2006
__________________
Date