0120113081
01-13-2012
Kenza L. Newman-Starling, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Kenza L. Newman-Starling,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120113081
Agency No. 1C081001311
DECISION
Complainant filed a timely appeal with this Commission from the
Agency's decision dated May 16, 2011, 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. Upon review, the Commission finds that Complainant's complaint
was properly dismissed pursuant to 29 C.F.R. § 1614.107(a) for failure
to state a claim and for untimely contacting an EEO counselor.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a Modified Clerk at the Agency’s South Jersey P&DC facility in Bellmawr,
New Jersey.
On April 18, 2011, Complainant filed a formal complaint alleging
that the Agency subjected her to discrimination on the bases of race
(African-American), sex (female), and reprisal for prior protected EEO
activity under Title VII of the Civil Rights Act of 1964 when: (1)
on May 19, 2010, management submitted a statement to the Department
of Labor which controverted Complainant’s workers’ compensation
claim; (2) on July 23, 2010, she was issued a 14-day suspension for
failure to meet the attendance requirements of her position; and (3)
between September 7-November 5, 2010, she was harassed, yelled at,
and disrespected on the work room floor.
The Agency dismissed the entire complaint for failure to file a timely
formal complaint. The Agency also dismissed claims 1 and 2 for failing
to contact an EEO counselor in a timely manner. The Agency noted that
Complainant contacted an EEO counselor on November 26, 2010, which is
beyond the 45-day time limit for contacting a counselor. The Agency also
dismissed claim 3 for failure to state a claim.
The instant appeal followed.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. § 1614.107(a)(2) states, in
pertinent part, that an agency shall dismiss a complaint which fails
to comply with the applicable time limits contained in 29 C.F.R. §
1614.106(b) which, in turn, requires the filing of a formal complaint
within fifteen (15) days of receiving the notice of the right to do so.
The record contains evidence that establishes that the notice of right
to file was sent to Complainant’s address of record by Priority
Mail Signature Confirmation and was signed for on February 26, 2011.
While Complainant denies she received the notice on this date, objective
evidence shows otherwise. The notice properly informed Complainant of her
obligation to file a formal complaint within 15 days of her receipt of the
notice. Complainant filed her formal complaint in an envelope containing
a postmark of April 18, 2011, well beyond the 15-day limitation period.
Accordingly, the Agency’s dismissal for an untimely filed complaint
was correct.
Moreover, the record also supports the Agency’s alternative dismissal
of claims 1 and 2 for untimely EEO counselor contact. 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. Complainant
first contacted an EEO counselor on November 26, 2010, well beyond the
45-day limitation period. While Complainant argues her delay should
be excused because she waited to pursue EEO counseling until after OWCP
made its decision and after she processed a grievance on the suspension,
the Commission has consistently held that the utilization of agency
procedures, union grievances, and other remedial processes does not
toll the time limit for contacting an EEO Counselor. See Ellis v. United
States Postal Service, EEOC Appeal No. 01992093 (November 29, 2000).
Finally, with respect to Complainant’s harassment claim, the Commission
has held that where, as here, a complaint does not challenge an agency
action or inaction regarding a specific term, condition, or privilege of
employment, the claim of harassment may survive if it alleges conduct
that is sufficiently severe or pervasive to alter the conditions of
the complainant’s employment. See Harris v. Forklift Systems, Inc.,
510 U.S. 17, 23 (1993). A fair reading of the complaint and related EEO
counseling materials shows that Complainant is alleging she was subjected
to “threatening” body language and gestures, and was treated with
disrespect when she approached managers in her capacity as a union
steward. She also asserts she was denied union time. The Commission
finds that Complainant’s allegations, individually or as a whole,
are insufficient to state a claim of a discriminatory hostile work
environment. Moreover, to the extent she is alleging a violation of the
union contract with regard to union time and recognition by management
of her status as a union steward, those matters are more appropriately
addressed through the collective bargaining procedures rather than the
EEO process.
Accordingly, the Agency's final decision dismissing Complainant's
complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
January 13, 2012
__________________
Date
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0120113081
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120113081