01982090_r
03-10-1999
Margaret L. Napier, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Margaret L. Napier, )
Appellant, )
)
v. ) Appeal No. 01982090
) Agency No. 4E-852-0152-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On January 15, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) received by her on December 18, 1997,
pertaining to her complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. �2000e et seq. The agency characterized appellant's complaint
as alleging that she was subjected to sexual harassment and a hostile
work environment on the basis of sex (female) when:
In August 1996, after being told verbally that she had been selected
for an ad-hoc EEO Counselor position, she was informed in writing of
her non-selection;
On December 2, 1996, appellant learned that another employee was given
overtime opportunities that she was denied;
On March 21, 1997, appellant was given a birthday card on which someone
wrote a sexual innuendo concerning her; and
On May 2, 1997, appellant's supervisor prepared and mailed a letter to
an EEO complainant which contained untrue statements about appellant.
The agency accepted allegation (3) for investigation,
dismissed allegations (1) and (2) pursuant to EEOC Regulation 29
U.S.C. �1614.107(b), for failure to initiate contact with an EEO
Counselor in a timely manner, and dismissed allegation (4) pursuant to
29 U.S.C. �1614.107(a), for failure to state a claim. Specifically,
the agency determined that appellant's May 19, 1997 initial EEO Counselor
contact occurred more than forty-five (45) days from the dates on which
allegations (1) and (2) occurred, and was, therefore, untimely. Also,
the agency concluded that appellant failed to show how she suffered harm
to the terms, conditions, or privileges of her employment as a result
of the letter, which is the subject of allegation (4), as it did not
specifically identify appellant by name.
As a preliminary matter, the Commission notes that the agency failed
to address appellant's allegation concerning messages of a personal
and sexual nature that she was forced to take from her supervisor's
husband, and the Commission deems the agency's action to be tantamount
to a dismissal of that matter. Appellant's submissions on appeal reveal
that the EEO Office was notified of the issue as appellant referenced the
matter in her formal complaint. Accordingly, the agency's dismissal of
appellant's allegation concerning the personal and sexual messages she
was forced to take is REVERSED, and that allegation is REMANDED to the
agency for further processing.
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 Ball v. USPS, EEOC Request
No. 05880247 (July 6, 1988). 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.
In the instant case, appellant, a former employee in the agency's EEO
office, acknowledges that she was aware of the forty-five (45) day time
limitation as she previously read pamphlets describing the EEO process.
As appellant's May 19, 1997 initial EEO Counselor contact occurred
more than 45 days from the dates on which the incidents described in
allegations (1) and (2) occurred, and she offered no justification
sufficient to extend the applicable limitation period, we find that
the agency properly dismissed allegations (1) and (2) for untimely EEO
Counselor contact.
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).
In allegation (4), appellant alleges discrimination when a letter was sent
to an EEO complainant that contained untrue statements about appellant.
We find, however, that appellant failed to show how the contents of the
letter affected the terms, conditions, or privileges of her employment.
In doing so, we note that appellant was not specifically identified in
the letter, and nothing in the record suggests that any tangible harm
to appellant's employment occurred as a result of the letter being sent.
Based on the foregoing, we find that allegation (4) was properly dismissed
pursuant to 29 U.S.C. �1614.107(a), for failure to state a claim.
Accordingly, the agency's decision to dismiss allegations (1), (2),
and (4) is AFFIRMED for the reasons set forth herein. The agency's
decision to dismiss appellant's allegation concerning the personal and
sexual telephone messages she was forced to take is hereby REVERSED.
That allegation is REMANDED to the agency for further processing in
accordance with this decision and the Order below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegation in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegation 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 acknowledgment 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 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. 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:
March 10, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations