U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Donna W.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 0120162755 Agency No. 4K-200-0065-16 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated August 11, 2016, dismissing a formal complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as a City Letter Carrier for the Agency at the Agency's Columbia Heights Carrier Annex in Washington, D.C. On March 31, 2016, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful. On July 26, 2016, Complainant filed a formal complaint alleging that she was subjected to discrimination on the basis of disability. On August 11, 2016, the Agency issued a final decision. The Agency determined that the formal complaint was comprised of the following claims: 1) On October 19, 2015, [Complainant] was charged with being absent without official leave, AWOL; and 2) On November 4, 2015, through November 28, 2015, [Complainant's] request for sick leave was denied, and she was charged with being absent without official leave (AWOL), for 80 hours. The Agency dismissed the subject-matter formal complaint on the grounds of Complainant's untimely EEO Counselor contact pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency found that Complainant did not initiate EEO Counselor contact until March 31, 2016, which it found to be well beyond the regulatory 45-day limit for making timely contact. This instant appeal followed. Complainant did not include a brief or submit additional arguments in support of her appeal. 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. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 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 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 her control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. The Agency properly dismissed the formal complaint pursuant to 29 C.F.R § 1614.107(a)(2), on the grounds of untimely EEO Counselor contact. Complainant discussed the issue of having been charged AWOL with her supervisor, after Complainant returned to duty on November 30, 2015. Complainant, however, initially contacted her EEO Counselor on March 31, 2016. Complainant stated that her delay was "because she was awaiting payment from the grievance process and the results of a congressional that she filed." See EEO Alternative Dispute Resolution Specialist's (ADRS) Inquiry Report, PS Form 2570 at 4. The "use of the internal agency procedures, union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor." Bond v. Dep't of the Air Force, EEOC Appeal No. 01A41925 (May 20, 2004); req to recons. den., EEOC Request No. 05A40978 (Aug. 3, 2004). Complainant initiated the Congressional inquiry regarding the disputed AWOL on November 20, 2015. Complainant also attempted to resolve the matter though her union steward as late as December 11, 2015. Complainant has not presented sufficient evidence in support of waiving or tolling our time limit for contacting an EEO Counselor. The Agency's final decision dismissing the formal complaint on the grounds of untimely EEO Counselor contact is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0416) The Commission may, in its discretion, reconsider the decision in this case if 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 Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations December 15 ,2016 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120162755 2 0120162755