01981874
02-25-1999
Elizabeth Rory, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Elizabeth Rory v. United States Postal Service
01981874
February 25, 1999
Elizabeth Rory, )
Appellant, )
)
v. ) Appeal No. 01981874
) Agency No. 4F-940-0182-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning her complaint of unlawful employment discrimination,
in violation of the Age Discrimination in Employment Act of 1967, as
amended, 29 U.S.C. �621 et seq. and the Rehabilitation Act of 1973, as
amended, 29 U.S.C. �791 et seq. The final agency decision was received
by appellant on December 13, 1997. The appeal was postmarked January
5, 1998. Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)),
and is accepted in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed portions
of appellant's complaint for untimely contact with an Equal Employment
Opportunity (EEO) Counselor, and for failure to state a claim.
BACKGROUND
Appellant contacted an EEO counselor on July 28, 1997, regarding
allegations of discrimination. Specifically, appellant alleged that
she was discriminated against when:
(1) on April 11, 1997 she was not paid for sick leave;
(2) on May 7, 1997 she was not provided with an ergonomic work station
as a reasonable accommodation for her disability;
(3) she did not receive compensation pay on June 6, 1997 for a work
related injury;
(4) on June 20, 1997 she received a letter restricting her sick leave;
and
(5) she was issued a notice of suspension on July 23, 1997.
Informal efforts to resolve appellant's concerns were unsuccessful.
Accordingly, on September 8, 1997, appellant filed a formal complaint
alleging that she was the victim of unlawful employment discrimination
on the bases of race (black), sex (female), age (3/18/43), reprisal
(prior EEO activity), and physical disability (back, neck and arm).
On December 8, 1997, the agency issued a final decision accepting for
investigation allegations (4) and (5) of appellant's complaint but
dismissing the remaining allegations for untimely EEO contact and for
failure to state a claim. Specifically, the agency determined that
appellant's July 28, 1997<1> EEO contact concerning allegations (1)
and (2) which appellant alleges occurred on April 11, 1997 and May 7,
1997, was beyond the time limitations prescribed by EEOC Regulations.
Also with respect to allegation (1) that appellant did not receive
pay for sick leave, the agency determined that appellant failed to
state a claim. The agency stated that the issue was resolved with a
pay adjustment appellant received on August 25, 1997. Allegation (3)
of appellant's complaint was similarly dismissed for failure to state
a claim. The agency determined that because appellant's workman's
compensation claim was denied by the Department of Labor, she was not
entitled to compensation pay on June 6, 1997.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.105(a)(1), requires that an aggrieved
person must initiate contact with an EEO Counselor within forty-five
(45) days of the matter alleged to be discriminatory or, in the case of
a personnel action, within forty-five days of the effective date of the
action.
Based on our review of the record and previous Commission's decisions on
this issue, we hold that appellant's EEO Counselor contact on July 28,
1997 was untimely with regard to allegation (1). The Commission has
held that where there is an issue of timeliness, the agency always bears
the burden of obtaining sufficient information to support a reasoned
determination as to timeliness. Williams v. Department of Defense, EEOC
Request No. 05920506 (August 25, 1992). While appellant has offered
no reason for her delay in seeking counseling, the agency has provided
the Commission with a copy of an EEO poster on display at appellant's
work site. The poster contains relevant information on time limitations
for Counselor contact. The Commission finds that the agency has met its
burden concerning the issue of untimeliness. The agency's dismissal
of allegation (1) as untimely was proper. In light of our finding,
we need not address the agency's alternative grounds for dismissal.
With regard to allegation (2), we find that the agency erred by dismissing
the allegation for untimely counselor contact. Allegation (2), which
concerns the agency's failure to provide reasonable accommodation,
is in the nature of a recurring violation. Thus, we deem appellant's
counselor contact timely with regard to allegation (2).
EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part,
that an agency shall dismiss a complaint, or portion thereof, that
fails to state a claim. An agency shall accept a complaint from any
aggrieved employee or applicant for employment who believes that he
or she has been discriminated against by that agency because of race,
color, religion, sex, national origin, age or disabling condition. 29
C.F.R. �1614.103; �1614.106(a). The Commission's federal sector case
precedent has long defined an "aggrieved employee" as one who suffers
a present harm or loss with respect to a term, condition, or privilege
of employment for which there is a remedy. Diaz v. Department of the Air
Force, EEOC Request No. 05931049 (April 21, 1994).The FAD also indicates
that the agency dismissed allegation (1) and allegation (3) for failure
to state a claim of discrimination. The agency determined that
allegations (1) and (3) failed to allege an unresolved personal injury.
A review of the record shows that the Department of Labor denied
appellant's worker's compensation claim for a work related injury on June
6, 1997. The agency concluded therefore, that appellant's allegation
did not constitute an unresolved harm as a result of a discriminatory
act on the part of the agency. The agency determined that appellant was
not aggrieved within the context of Part 1614 of the EEOC Regulations.
We agree with the agency's determination and find that its decision
dismissing allegation (1) for failure to state a claim was proper.
CONCLUSION
Accordingly, the agency's decision dismissing allegations (1) and (3) of
appellant's complaint was proper and is AFFIRMED. The agency's decision
dismissing allegation (2) was improper and is REVERSED and allegation
(2) is remanded for further processing.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgement to appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision 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 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.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
Feb 25, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1We note here that the FAD indicates July 22, 1997 as the date of EEO
contact. However, a review of the report of the EEO Counselor indicates
July 28, 1997 as the date of appellant's initial contact with the EEO
office.