0120101796
08-06-2010
Patricia A. Reynolds, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Patricia A. Reynolds,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120101796
Agency No. 4H350002410
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated February 23, 2010, 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. Upon review, the Commission finds that a claim in Complainant's complaint was improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. For the following reasons, the Commission MODIFIES the Agency's final decision and REMANDS the claim for investigation.
ISSUE PRESENTED
Whether the Agency properly dismissed Complainant's claims on the grounds that she failed to state a claim of discrimination.
BACKGROUND
At all times relevant to the alleged discriminatory actions, Complainant was employed as a Carrier Technician at the Agency's Atmore, Alabama, Post Office. On February 16, 2010, Complainant filed a formal complaint in which she alleged that the Agency subjected her to discrimination on the bases of age (59) and in reprisal for prior protected EEO activity under Title VII when:
1. During the summer of 2009, she was called a "working mule;" and
2. On December 11, 2009, management announced that another employee would be trained as the 204B Acting Supervisor.
FINAL AGENCY DECISION
The Agency dismissed claim (1) on the grounds that Complainant failed to contact a counselor within 45 days. Specifically, the Agency noted that Complainant waited approximately three months to initiate EEO counseling and failed to provide any argument or evidence that she was not aware of the timeliness requirements pursuant to 29 C.F.R. � 1614.105(a)(1). With regard to claim (2), the Agency determined that the claim failed to allege an adverse action with respect to a term or condition of employment. On these grounds, the Agency dismissed claim (2) for failure to state a claim.
CONTENTIONS ON APPEAL
Complainant does not submit contentions on appeal.
On appeal, the Agency reiterates that Complainant failed to provide any argument or explanation for her failure to initiate EEO counseling within the 45-day timeframe stipulated under 29 C.F.R. � 1614.105(a)(1). Further, the Agency reiterates its argument that Complainant failed to show that she was an aggrieved employee pursuant to 29 C.F.R. � 1614. On these grounds, the Agency requests that the Commission affirm its dismissal of Complainant's complaint.
FINDINGS AND ANALYSIS
Claim (1)
Upon review, the Commission finds that claim (1) was properly dismissed for untimely EEO counselor contact pursuant to 29 C.F.R. � 1614.107(a)(2). The record reflects that Complainant initiated EEO counseling on December 21, 2009, approximately three months after the alleged incident occurred. The record also reflects that EEO posters outlining the time limits for initiating EEO counseling were clearly displayed at multiple locations at the Agency's Atmore, Alabama Post office. Complaint File at 35. Accordingly, we find that Complainant had constructive knowledge of the applicable time limits for contacting an EEO counselor. On appeal, Complainant has provided no argument or evidence warranting an extension for the time limit for filing initiating EEO counselor contact. Accordingly, we AFFIRM the Agency's dismissal of claim (1).
Claim (2)
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that 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, .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).
With regard to claim (2), Complainant alleged that on multiple occasions she informed management that she was interested in pursuing training to become a 204B Acting Supervisor. Complaint File at 60-64, and 74. Complainant averred that on each occasion, management denied her request. Id. Complainant alleged that management provided training only to individuals younger than herself. Id. at 39. In this regard, Complainant identified three comparators under age 40 whom she alleged management selected instead of her for 204B training. Id. at 49. We find that Complainant has alleged an injury or harm to a term, condition, or privilege of employment for which there is a remedy. Diaz, EEOC Request No. 05931049. Accordingly, the Agency's final decision dismissing claim (2) is REVERSED. Claim (2) is hereby remanded to the Agency for further processing in accordance with this decision and the Order below.
CONCLUSION
The Commission finds that the Complainant has stated a claim under EEOC regulations with respect to claim (2). Accordingly, the agency's final decision dismissing Complainant's complaint is MODIFIED as indicated above and claim (2) is REMANDED for investigation in accordance with the order below.
ORDER (E0610)
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 (K0610)
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 77960, Washington, DC 20013. 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 (M0610)
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), at 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 77960, Washington, DC 20013. 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 (T0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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
with the Court 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
___8/6/10_______________
Date
2
0120101796
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120101796