01A22900_r
12-18-2002
Anne K. Tysver, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Anne K. Tysver v. United States Postal Service
01A22900
December 18, 2002
.
Anne K. Tysver,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A22900
Agency No. 41-553-0060-01
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated April 11, 2002, 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.
On July 6, 2001, complainant initiated contact with an EEO Counselor.
Informal efforts to resolve her concerns were unsuccessful.
In her formal complaint filed on August 14, 2001, complainant alleged
that she was subjected to discrimination on the bases of race, sex, age,
and in reprisal for prior EEO activity.
In its final decision dated April 11, 2002, the agency determined that
complainant's complaint was comprised of the following claims:
On November 29, 2000, she was constructively terminated from her
employment as a contract route driver because of harassment by her
supervisor and the Postmaster. This harassment started after complainant
and her husband gave testimony in an EEOC sexual harassment suit for
another employee and after she gave testimony for the person who was
allegedly harassed. The harassment of complainant then occurred when:
(a) From March of 1998 until November 29, 2001<1>, she was
told that she could not do her job,
and the Postmaster used a hostile and sarcastic tone when
speaking to her;
(b) On March 28, 1998, her supervisor's antics made her back up into
a counter while she was buying stamps;
(c) On May 7, 1998, June 22, 1998, July 26, 1999, and November 29, 2000,
the Postmaster wrote up complainant or her help, sometimes mistakenly;
(d) On July 4, September 5 and 11, and November 5, 1998, the Postmaster
discussed delivery issues with complainant's husband, including the
moving of her vehicle to the street to keep the windows clear and not
pollute the loading dock with diesel fumes;
(e) On November 4, 1999, another carrier had a gun on agency property
in violation of regulations, and on November 11, 1999,
snide comments were made about it;
(f) On November 4 and 11, 1999, and November 9, 2000, respectively,
complainant was asked to deliver mis-sorted mail, given mail that
was upside down and backwards to deliver, and given fliers from other
carriers to deliver;
(g) For a year and a half prior to December 14, 1999, the Postmaster
allowed a different carrier to run with his tail light out, and for
an unspecified time that carrier was allowed to operate without safety
equipment;
(h) On May 4, 2000, complainant discovered that the Postmaster had
instructed other employees not to talk to her;
(i) On December 5, 2000, the Postmaster was slow in getting complainant
a forward card given to him four days earlier;
(j) On unspecified dates prior to April 30, 2001, the Postmaster voiced
complaints about complainant in front of everyone;
(k) On June 29, 1999, June 26, 2000, and August 22, 2000, and on
unspecified dates prior to April 30, 2001, the Postmaster and other
clerks hid or left first class, certified, priority or express mail that
should have been distributed to routes or cleared that day, and nothing
was said about it;
(l) On unspecified dates prior to April 20, 2001, the Postmaster lowered
his pants to show his shorts when changing shirts without going to a
private place to do so, told Viagra jokes, and was a compulsive liar;
(m) On unspecified dates prior to April 30, 2001, the Postmaster ordered
updated route sheets that nothing was done with, and complainant's helper
was fingerprinted five times without the forms being processed;
(n) On unspecified dates prior to April 30, 2001, the custodian would
shake a dust mop out by complainant's case and interrupt sorting to put
up recycle bags; and
(o) On unspecified dates prior to April 30, 2001, the Postmaster
reassigned boxes away from complainant's route to other routes.
The agency dismissed claims (1)(b) through (1)(o) on the grounds of
untimely EEO Counselor contact, finding that complainant did not contact
an EEO Counselor concerning these alleged incidents until July 6,
2001, beyond the 45-day limit. The agency also dismissed claim (1)(a)
for failure to state a claim, pursuant to EEOC Regulation 29 C.F.R. �
1614.107(a)(1), and alternatively, claims 1(b) through 1(k) and 1(m)
through 1(o) for failure to state a claim.
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). 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 Regulation 29 C.F.R. � 1614.105(a)(2) further provides 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 her brief on appeal, complainant states that the harassment and
retaliation had been ongoing. Complainant does not dispute the agency's
identification of various claims as occurring from 1998 through 2000, or
�to unspecified dates prior to April 30, 2001.� Moreover, complainant
does not contend that she was unaware of the time limits for contacting
an EEO Counselor or that she was unaware that the alleged discriminatory
incidents occurred at the times stated in her complaint. Complainant's
initial EEO contact on July 6, 2001, was beyond the 45-day limit.
The agency's decision to dismiss claims 1(b) through (o) for failure to
timely contact an EEO Counselor was proper and is AFFIRMED.
The Commission notes that in the portion of claim 1 that precedes
its breakdown into subsections (a) - (o), complainant alleged that
she was improperly separated from agency employment in November 2000.
This claim, not expressly addressed by the agency in its final decision,
was also raised more than forty-five days prior to complainant's initial
EEO contact in July 2001. Further, when the proper dates are used for
claim (1)(a), i.e., March 1998 until November 2000, complainant's EEO
contact is untimely with regard to these incidents as well. Accordingly,
the agency's dismissal of claim (1) is AFFIRMED for the reasons set
forth herein.
Because we affirm the dismissal of the complaint for the reasons stated
herein, we find it unnecessary to address alternative dismissal grounds.
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
December 18, 2002
__________________
Date
1The agency inadvertently referred to this
date as �November 29, 2001.� We note, for example, that the record
contains a letter from complainant dated November 29, 2000, wherein she
informed the agency that she would cease working effective December 29,
2000. Moreover, in the Information for Pre-Complaint Counseling form,
complainant identifies December 29, 2000, as the date of the most recent
discriminatory action, which purportedly commenced in March 1998.