01a60047
03-10-2006
Rosie L. Ward, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Rosie L. Ward v. United States Postal Service
01A60047
March 10, 2006
.
Rosie L. Ward,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A60047
Agency No. 4G-752-0228-05
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. In her complaint, complainant
alleged that she was subjected to discrimination on the bases of race
(African-American), national origin (African-American), disability,
and age (D.O.B. 06/14/1943) when she found out that the agency had been
improperly coding her time each pay period.
The record discloses that complainant alleged that the mis-coding had
been happening since July 11, 1984, although complainant asserts she did
not become aware of the mis-coding until March 26, 2005, when she was
checking into her retirement possibilities. See Formal Complaint, dated
August 3, 2005. Complainant asserts that as a result of the mis-coding
since 1984, she has been improperly charged with over 14,000 hours of
Leave Without Pay, with a corresponding reduction in credited service,
which will have a significant impact on her ability to retire.
The record establishes, and complainant does not dispute, that she
first initiated contact with an EEO Counselor on this matter on May
31, 2005, which the agency argues is well beyond the forty-five (45)
day limitation period. The agency asserts that the limitations period
started running in July 1984, when the alleged mis-coding first began.
However, repeated occurrences of the same discriminatory employment
action, such as alleged discriminatory paychecks, can be challenged
as long as one discriminatory act occurred within the required filing
period. See Bazemore v. Friday, 478 U.S. 385, 395-96 (1986) (Brennan,
J., concurring) (�Each week's paycheck that delivers less to a black
than a similarly situated white is a wrong actionable under Title VII,
regardless of the fact that this pattern was begun prior to the effective
date of Title VII.�); Hildebrandt v. Illinois Dep't of Human Resources,
347 F.3d 1014 (7th Cir. 2003); EEOC's Compliance Manual, Section 2,
�Threshold Issues,� p. 2-73 to 2-74, EEOC Notice 915.003 (July 21, 2005).
It should be noted, however, that because each occurrence is a discrete
discriminatory act, potential relief will be limited to occurrences
within the filing period, i.e., those timecards discriminatorily mis-coded
within 45 days of complainant's initial EEO counselor contact. Id.
Accordingly, the agency's final decision dismissing complainant's
complaint is REVERSED and the complaint is REMANDED to the agency for
further processing in accordance with this decision and the ORDER below.
ORDER (E0900)
The agency is ordered to process the remanded complaint in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claim 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 (S0900)
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. 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
March 10, 2006
__________________
Date