0120111243
12-06-2011
Lorraine C. Simmons, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Headquarters), Agency.
Lorraine C. Simmons,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Headquarters),
Agency.
Appeal No. 0120111243
Agency No. 6U-000-0035-10
DECISION
Complainant filed a timely appeal with this Commission from the Agency’s
decision dated November 5, 2010, 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. and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. § 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Business Solution Specialist at the Agency’s facility in West
Columbia, South Carolina. On October 25, 2010, Complainant filed a
formal complaint alleging that the Agency subjected her to a hostile
work environment on the bases of her race (African-American), age (58),
and reprisal for prior protected EEO activity when on unspecified dates:
(1) management officials used profanity and made disparaging comments
about her as a person; (2) management did not afford her fair ratings,
appeal rights, or access to job openings; (3) Complainant was yelled at
and embarrassed in public; and (4) management gave her different sales
performance expectations than co-workers outside her protected classes.
The Agency dismissed the complaint for failure to state a claim, pursuant
to 29 C.F.R. §1614.107(a)(1), and untimely EEO counselor contact,
pursuant to 29 C.F.R. §1614.107(a)(2). On appeal, Complainant provides
numerous documents to support her contention that she was subjected to
harassment as alleged.
ANALYSIS AND FINDINGS
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 he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the Agency
or the Commission.
A review of Complainant’s formal complaint shows that although she did
not specify when each of the alleged discriminatory actions occurred, she
does list numerous dates on which “alleged act(s) of discrimination took
place.” The most recent date listed in her complaint is July 22, 2010.
The record reveals, however, that Complainant did not initiate contact
with an EEO Counselor until September 15, 2010, which is beyond the
forty-five (45) day limitation period.
We find that Complainant has not provided sufficient justification
for extending or tolling the time limitation. Thus, we find that the
dismissal of the complaint for untimely EEO Counselor contact pursuant
to 29 C.F.R. § 1614.107(a)(2) was proper.1
CONCLUSION
The Agency’s final decision 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
December 6, 2011
__________________
Date
1 The Commission notes that since it has affirmed the Agency’s dismissal
of the complaint pursuant to 29 C.F.R. §1614.107(a)(2), we need not
address the Agency’s additional grounds for dismissal pursuant to 29
C.F.R. §1614.107(a)(1) for failure to state a claim.
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0120111243
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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