01A33768_r
09-25-2003
Felicia J. Koerner, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Felicia J. Koerner v. United States Postal Service
01A33768
September 25, 2003
.
Felicia J. Koerner,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A33768
Agency No. 4H-370-0057-03
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated April 30, 2003, 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. In her complaint, complainant alleged that
she was subjected to discrimination on the bases of sex (female), age
(D.O.B. 3/11/53), and reprisal when:
On October 12, 2002, complainant received a Letter of Warning, and
On November 6, 2002, the Postmaster discussed confidential information
from the mediation with other employee[s] and talks about [her] to others.
The agency dismissed complainant's complaint pursuant to the regulation
set forth at 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor
contact. The agency claimed that complainant received the Letter of
Warning on September 11, 2002, however, she failed to contact an EEO
Counselor within the applicable limitations period. The agency stated,
however, that assuming arguendo that the complaint was filed in a timely
manner, the November 6, 2002 issue fails to state a claim.
On appeal complainant states that she received the Letter of Warning on
September 16, 2002. Complainant produces a copy of the September 11,
2002 Letter of Warning signed by the Postmaster. The letter contains a
signature line to be signed by the receiving party and a line for the
date and time of receipt. The letter provided on appeal states that
the letter was received by complainant on September 16, 2002, however,
the signature line is left blank. Also on appeal, complainant claims
that on October 12, 2002, another employee, Person A, left his jeep
running and completely out of sight. Complainant states that after this
incident she waited several weeks and finally found out that Person A
did not receive a letter of warning and she claims that is when she had
a reasonable suspicion of discrimination and thus filed her complaint
in a timely manner.
The record contains complainant's October 1, 2002 response to the Letter
of Warning she received. In her response complainant states that there
are several others at the office who have broken the rules for �basically
the same thing� who have not been reprimanded.
The record contains a copy of complainant's November 1, 2002 Request
for Pre-Complaint Counseling. In her Request complainant describes the
October 12, 2002 incident with Person A and states that Person A has
been warned numerous times but was not written up while she was written
up on her first offense.
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.
Upon review, we find that the agency properly dismissed issue (1) for
untimely counselor contact. The record reveals that complainant received
the Letter of Warning at the latest on September 16, 2002, and reasonably
suspected or should have reasonably suspected discrimination at that time;
however, she failed to contact an EEO Counselor until November 1, 2002,
which is beyond the applicable limitations period.
With regard to issue (2), we find that the agency properly dismissed
this issue for failure to state a claim. We note that complainant has
failed to identify a harm or loss to a term, condition, or privilege of
employment for which there is a remedy. Therefore issue (2) is properly
dismissed pursuant to 29 C.F.R. � 1614.107(a)(1).
Accordingly, the agency's final decision dismissing the complaint is
AFFIRMED.
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 25, 2003
__________________
Date