01a34670_r
04-27-2004
Caryl L. Reed, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Caryl L. Reed v. United States Postal Service
01A34670
April 27, 2004
.
Caryl L. Reed,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A34670
Agency No. 4E-680-0171-03
DECISION
Upon review, the Commission finds that complainant's complaint was
improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely
EEO Counselor contact.
On February 13, 2003, complainant initiated EEO Counselor contact.
Informal efforts to resolve her concerns were unsuccessful.
In her formal complaint dated April 30, 2003, complainant alleged that she
was subjected to discrimination on the bases of sex and age. Therein,
complainant claimed that she had been subjected to a �constant barrage�
of orders and letters of warning over the preceding several years.
Complainant claimed that she has been threatened with dismissal on
numerous occasions, and that a supervisor informed a physician that
complainant had been faking injuries. Complainant's complaint and
statement on appeal reflect, moreover, that she claimed that she was given
a discussion on December 10, 2002, and was thereafter issued a letter
of warning in February 2003, for eating at the worksite. Complainant's
requested remedy consisted, in part, of �not being constantly harassed.�
In its final decision dated June 30, 2003, the agency determined that
complainant's complaint was comprised solely of the claim that she was
issued a letter of warning on December 10, 2002. The agency dismissed the
complaint on the grounds of untimely EEO Counselor contact. The agency
determined that the alleged discriminatory incident occurred on December
10, 2002, but that complainant did not contact an EEO Counselor on that
matter until February 13, 2003, beyond the 45-day time limit set by the
Regulations.
On appeal, complainant reiterates that she is the victim of ongoing
harassment by her supervisor and that a letter of warning was issued
in February 2003, and not in December 10, 2002. Complainant attaches a
copy of the letter of warning dated February 21, 2003. Complainant states
that December 10, 2002, was the date of the first discussion when she
was told that she could not have refreshments at her case. Complainant
stated that she complied with this instructions and later found out that
this rule applied to her only and other clerks had coffee and ate at
their cases. Complainant stated that she was told on February 11, 2003,
that she was going to get a letter of warning and that February 21,
2003, she received the letter of warning.
The Commission determines that the agency miscategorized the instant
complaint. It is not comprised solely of one claim. Instead, a fair
reading of the informal complaint documents, the formal complaint, and
complainant's appeal reflects that complainant claims that she has been
subjected to ongoing harassment based on her sex and age by complainant's
supervisor that culminated in the issuance of the letter of warning dated
February 21, 2003. As some of the incidents occurred within forty-five
days of complainant's initial EEO contact, the Commission determines
that all the incidents of harassment are deemed timely raised with an
EEO Counselor. Accordingly, the final agency decision is REVERSED.
The complaint is REMANDED to the agency for further processing as
ordered below.
ORDER (E0900)
The agency is ordered to process the remanded claims 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
(R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 filed your appeal with the
Commission. 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. 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
April 27, 2004
__________________
Date