0120102355
11-01-2012
Lyudmila Gadayeva, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Northeast Area), Agency.
Lyudmila Gadayeva,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120102355
Agency No. 1A-102-0040-09
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated April 1, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether the Agency properly dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk at the Agency's Morgan Processing and Distribution Center in New York, New York. On September 1, 2009, Complainant filed a formal complaint alleging that, beginning in 1999, the Agency subjected her to ongoing discrimination and harassment on the bases of race (Caucasian), national origin (Russian), sex (female), religion (Jewish), color (White), and disability. Complainant alleged that the harassment included, but was not limited to, the following:
1. Since 2000, she was forced to work beyond her physical capabilities;
2. In 2005, 2006, March 9, 2009, and other unspecified dates, she was threatened, stalked, and verbally abused;
3. On March 17, 2009, a co-worker pushed a cart of mail into her desk;
4. On March 21, 2009, a co-worker rammed two carts of heavy mail into her and management ignored her request for medical assistance; and
5. On March 21, 2009, a woman attempted to push her onto the subway tracks.
On September 23, 2009, the Agency issued a partial acceptance/partial dismissal letter. Specifically, the Agency dismissed incident 1 pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact, but accepted incidents 2-5 for investigation.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an EEOC Administrative Judge. When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to
29 C.F.R. � 1614.110(b).
The Agency dismissed Complainant's allegations pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. Specifically, the Agency found that Complainant first contacted an EEO Counselor on June 10, 2009 but that the most recent incident of harassment was alleged to have occurred on March 21, 2009, which was also the last date on which Complainant reported to work. Assuming, arguendo, that Complainant's EEO Counselor contact was timely, the Agency also addressed the merits of her complaint and found no discrimination.
CONTENTIONS ON APPEAL
On appeal, Complainant argued that the Agency denied her religious accommodation request, denied her annual leave, asked her for medical documentation, and forced her to do extra work.1 Complainant did not address the Agency's dismissal of her complaint.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) provides that the agency shall dismiss a complaint that fails to comply with the applicable time limits contained in � 1614.105, unless the agency extends the time limits in accordance with � 1614.604(c). EEOC Regulation
29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination be brought to the attention of the EEO 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 Supreme Court has held that a complaint alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 (2002).
EEOC Regulation 29 C.F.R. � 1614.105(a)(2) provides 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 his control from contacting the EEO Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission.
Upon review, we find that the Agency properly dismissed Complainant's complaint for untimely EEO Counselor contact. The record reflects that Complainant contacted an EEO Counselor on June 10, 2009. ROI, at 44, 48, 55, and 86. In order for Complainant's EEO Counselor contact to be timely, at least one incident that is part of her harassment claim must have occurred in the 45 days prior to June 10, 2009, or between April 26, 2009 and June 10, 2009.
In her formal complaint, Complainant alleged that the harassment took place throughout her 10-year work experience and that she was harassed every day at work for 10 years. Id. at 36, 40. The most recent incident of alleged harassment cited in Complainant's formal complaint, however, occurred on March 21, 2009. Id. at 39. Moreover, the record reflects that Complainant was absent from work from March 22, 2009 through July 26, 2009. Id. at 61. Based on the above, we find no indication that at least one incident constituting Complainant's harassment claim falls within the 45-day period preceding Complainant's June 10, 2009 EEO Counselor contact. On appeal, Complainant provided no reason for the Commission to extend the time limit for contacting an EEO Counselor. Accordingly, we find that the Agency properly dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision.
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
__11/1/12________________
Date
1 We note that Complainant raises new claims of discrimination for the first time on appeal. Complainant is advised to initiate contact with an EEO Counselor if she wishes to pursue these additional claims. We will not accept new claims raised for the first time on appeal.
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0120102355
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120102355