Esther M. Sanders, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 21, 2003
01A31982_r (E.E.O.C. Nov. 21, 2003)

01A31982_r

11-21-2003

Esther M. Sanders, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Esther M. Sanders v. United States Postal Service

01A31982

November 21, 2003

.

Esther M. Sanders,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A31982

Agency No. 4-H-320-0003-03

DECISION

Complainant filed an appeal with this Commission from a January 3,

2003 agency decision, dismissing claims 1 through 3 of her complaint,

pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely EEO Counselor contact

and claims 4 through 6, pursuant to 29 C.F.R. � 1614.107(a)(1) for

failure to state a claim. Complainant alleged that she was subjected

to discrimination on the bases of sex and age when: (1) on June 29,

2000, she was reassigned to the Gulf Breeze Office; (2) on December 22,

2001, she was removed from a higher level detail; (3) on July 9, 2002,

her schedule was changed; (4) on August 8, 2002, she was not included

in an employee breakfast; (5) on August 26, 2002, she was threatened

with absence without leave; and (6) on September 13, 2002, she was given

a �factfinding.�

In dismissing claims 1 through 3, the agency noted that complainant did

not contact an EEO Counselor until September 16, 2002, which was beyond

the requisite 45 days. Regarding claims 4 through 6, the agency stated

that complainant failed to show how she had suffered a personal harm or

loss as a result of the agency's alleged actions.

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. Department of the Navy,

EEOC Request No. 05970852 (February 11, 1999).

Regarding claims 1 through 3, the Commission finds that the agency's

dismissal on the grounds of untimeliness was proper. When the alleged

actions occurred, complainant should have had a reasonable suspicion

of discrimination. The record reveals, however, that complainant

did not initiate EEO Counselor contact until September 16, 2002,

which was beyond the 45-day time period required for timely contact.

Complainant has not provided any justification to extend the time period.

The Commission next addresses the dismissal of claims 4 through 6. 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. 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. See Diaz v. Department of the Air Force,

EEOC Request No. 05931049 (April 21, 1994).

The agency's dismissal of claims 5 and 6 for failure to state a claim

was proper. Complainant has not shown that she was placed on leave

without pay or that the identified factfinding resulted in a harm or

any adverse employment action. The Commission finds, however, that the

agency's dismissal of claim 4 was improper. Complainant alleged that she

was not invited to an employee breakfast while other employees were.

As such, complainant states a claim of discrimination regarding a

privilege of employment.

The agency's dismissal of claims 1, 2, 3, 5, and 6 is AFFIRMED.

The agency's dismissal of claim 4 is REVERSED and claim 4 is REMANDED

to the agency for further processing in accordance with the regulations

and the Order 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 (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

November 21, 2003

__________________

Date