01a53614
08-24-2005
Anjeanette M. Spencer, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Anjeanette M. Spencer v. United States Postal Service
01A53614
08-24-05
.
Anjeanette M. Spencer,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A53614
Agency No. 1C-431-0008-05
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated March 9, 2005, 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. In her complaint, complainant
alleged that she was subjected to discrimination on the bases of race
(African-American), sex (female), and disability (Pregnancy; Violation
of Family and Medical Leave Act)<1> when:
(1) on April 20, 2004, she was placed on Emergency Placement;
(2) on May 28, 2004, she was issued a Notice of Removal;
(3) on June 24, 2004, she was subjected to stress while attending EEO
Mediation for the present complaint; and
(4) in August 2004 through December 2004, she was subjected to a
hostile work environment by a co-worker upon returning to work.
The agency dismissed complainant's complaint for failing to file her
formal complaint within fifteen (15) calendar days after receipt of the
notice of right to file (the Notice). See 29 C.F.R. �� 1614.107(a)(2);
106(b). The agency explained that complainant received the Notice by
certified mail on January 29, 2005, but did not file her complaint until
February 18, 2005. In addition, the agency found that, with respect to
issues (1), (2), and (3), complainant failed to initiate contact with an
EEO Counselor within forty-five (45) days of the alleged discriminatory
events. See 29 C.F.R. �� 1614.107(a)(2); 105(a)(1).
On appeal, complainant provides a statement, dated March 28, 2005, from
her Reverend. In that statement, the Reverend explains that complainant
received erroneous instructions from an EEO Counselor in June of 2004,
when complainant requested that the Counselor clarify the meaning of
calendar days.<2> With respect to the timeliness of her EEO Counselor
contact, complainant asserts that she did not become aware of the alleged
discrimination until November 4, 2004. In addition, complainant describes
the alleged hostile work environment she has endured.
Complainant provides an additional letter to the Commission, dated May 9,
2005. She states that �this is [her] formal complaint of mishandling of
�Restricted Information' related to [her] current EEO case.� She further
describes the manner in which her FMLA Coordinator has allegedly disclosed
information regarding her FMLA condition and her EEO complaint.<3>
The agency requests that we affirm its dismissal of complainant's
complaint.
EEOC Regulation 29 C.F.R. � 1614.106(b) requires the filing of a complaint
with an appropriate agency official within 15 calendar days after the
date of receipt of the notice of the right to file a formal complaint.
An agency shall dismiss a complaint or a portion of a complaint that
fails to comply with the 15-day time limit contained in 29 C.F.R. �
1614.107(a)(2), unless the agency extends the time limits in accordance
with 29 C.F.R. � 1614.604(c). Under 29 C.F.R. � 1614.604(c), this time
limit is subject to waiver, estoppel, and equitable tolling.
First, the Commission must determine whether complainant's
misunderstanding of the regulations is sufficient justification for
tolling the requirements of 29 C.F.R. � 1614.106(b). Complainant
presents a statement from the Reverend that asserts that complainant
received erroneous instructions from an EEO Counselor in June of 2004,
when she requested the Counselor to clarify the meaning of calendar days.
Complainant and the Reverend maintain that the EEO Counselor stated that
weekends were not to be counted in calculating the 15 days for filing a
formal complaint. The agency, however, provides no affidavit from the
EEO Counselor as to the instructions he provided complainant in June
2004. Based upon the evidence presented by complainant and the lack of
evidence from the agency, the Commission must find that complainant was
misinformed of her obligation to file her complaint within 15 calendar
days of receipt of the Notice, and that complainant's formal complaint
was delayed as a result of the agency's misinformation. We note that the
Commission has previously held that an agency may not dismiss a complaint
based on a complainant's untimeliness, if that untimeliness is caused
by the agency's action in misleading or misinforming complainant. See
Wilkinson v. United States Postal Service, EEOC Request No. 05950205
(March 26, 1996); see also Elijah v. Department of the Army, EEOC Request
No. 05950632 (March 29, 1996) (if agency officials misled complainant
into waiting to initiate EEO counseling, agency must extend time limit
for contacting EEO Counselor). Accordingly, we find that complainant
has presented sufficient justification for tolling the time period for
filing her formal complaint.
The inquiry does not end here, however. The Commission must now determine
whether complainant's EEO Counselor contact was timely with respect to
claims (1), (2), and (3). EEOC Regulation 29 C.F.R. � 1614.107(a)(2)
requires agencies to dismiss a complaint or a portion of a complaint
which fails to comply with the time limitations set forth in 29 C.F.R. �
1614.105(a). An aggrieved person is required to initiate contact with
an EEO counselor within 45 days of the date of the matter alleged to be
discriminatory or, in the case of a personnel action, within 45 days of
the effective date of the action. See 29 C.F.R. � 1614.105(a)(1).
In the present case, the record indicates that complainant did not contact
an EEO Counselor until November 4, 2004, which is day 198 following the
alleged discrimination described in claim (1); day 160 following the
alleged discrimination described in claim (2); and day 133 following the
alleged discrimination described in claim (3). Complainant asserts that
she did not become aware of the alleged discrimination until November 4,
2004. We find, however, that claims (1), (2), and (3) are of a discrete
nature, and that complainant should have been aware of the discrimination
at the time that the events occurred. We conclude that complainant has
presented no persuasive arguments or evidence warranting an extension
of the time limit for initiating EEO Counselor contact with respect
to these claims. Accordingly, the agency's final decision dismissing
complainant's claims (1), (2), and (3) is correct.
Therefore, the decision of the agency is affirmed as to claims (1),
(2), and (3), and reversed and remanded as to claim (4). The agency
shall comply with the Commission's Order set forth below.
ORDER (E0900)
The agency is ordered to process claim (4) in accordance with 29 C.F.R. �
1614.108. The agency shall acknowledge to the complainant that it has
received the remanded claims within thirty (30) calendar days of the date
this decision becomes final. The agency shall issue to complainant a
copy of the investigative file and also shall notify complainant of the
appropriate rights within one hundred fifty (150) calendar days of the
date this decision becomes final, unless the matter is otherwise resolved
prior to that time. If the complainant requests a final decision without
a hearing, the agency shall issue a final decision within sixty (60)
days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
____08-24-05______________
Date
1 Although complainant alleges that the
agency violated the Family and Medical Leave Act (FMLA), 29 U.S.C. � 2601
et seq., the Commission does not have jurisdiction over that statute, and
use of the FMLA is not considered a basis under the Rehabilitation Act.
2 This clarification appears to have been in regard to complainant's
prior EEO complaint, Agency Complaint No. 1C-431-0040-04.
3 Complainant appears to be raising this new claim on appeal, which
is not permitted by EEOC Regulations. Therefore, even assuming,
that complainant's claim is related to her instant claim, it would
be inappropriate for the Commission to address the allegation
herein. Singleton v. Social Security Administration, EEOC Appeal
No. 01984784 (April 13, 2001).