0120073060
09-11-2007
Cheryl L. Skipper, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Cheryl L. Skipper,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120073060
Agency No. 4H-320-0041-07
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated May 24, 2007, 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 Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq.
During the relevant period, complainant was employed as a Sales, Service
and Distribution Associate at a Florida facility of the agency. On
February 20, 2007, complainant initiated contact with an Equal Employment
Opportunity (EEO) Counselor alleging that the agency subjected her to
harassment on the bases of national origin (Hispanic), sex (female) and
disability (on-the-job back injury) when (1) in August 2006, management
placed her on a six month suspension without pay regarding her use of
leave without pay and (2) on February 17, 2007, upon her return from the
six month suspension, the entire management staff treated her with disdain
and, then, on February 20, 2007, told her to report for an investigative
interview regarding leave usage from August 2006. Complainant resigned
from her position at the agency on February 22, 2007 and, in May 2007,
filed a formal EEO complaint reiterating the above claim of harassment.
The agency dismissed (1) for untimely EEO contact and (2) for failure
to state a claim, pursuant to 29 C.F.R. �� 1614.107(a)(2) & (1),
respectively. Complainant filed the instant appeal. On appeal,
complainant stated that she began experiencing change in her work
conditions and environment in February 2006 after two new managers
arrived and that, in August 2006, she filed a grievance regarding her
suspension. In opposition, the agency asked the Commission to affirm
its final decision.
Regarding (1), in pertinent part, the EEOC Regulation found at 29 C.F.R. �
1614.107(a)(2) allows an agency to dismiss a complaint that fails to
comply with the applicable time limits contained in 29 C.F.R. � 1614.105.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of an EEO 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. Dep't 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 Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
In the instant matter, in consideration of all of the circumstances
presented, we find that complainant did not initiate EEO contact in
a timely manner and has presented no persuasive arguments or evidence
warranting an extension of the time limit for initiating EEO Counselor
contact. On appeal, complainant stated that she began experiencing change
in her work conditions and environment in February 2006 after two new
managers arrived and that, in August 2006, she filed a grievance regarding
her suspension, so we find that she reasonably suspected discrimination
well before 45 days before the time she initiated EEO contact.
As to (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 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, .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). Consistent with our
past decisions with comparable circumstances, we find that complainant's
allegation regarding an investigative interview fails to state a claim.
See, e.g., Dykes v. U.S. Postal Service, EEOC Appeal No. 01A63103 (August
21, 2006); Kier v. U.S. Postal Service, EEOC Appeal No. 01A61441 (June
21, 2006).
Based on the above, we AFFIRM the agency's final decision.
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
September 11, 2007
__________________
Date
Date
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0120073060
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120073060