01A23631
10-18-2002
Krishna K. Dugal, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Krishna K. Dugal v. United States Postal Service
01A23631
October 18, 2002
Krishna K. Dugal,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 01A23631
Agency Nos. IF-027-0047-98,
IF-927-0045-99
Hearing Nos. 340-99-4017X,
340-A0-3135X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the bases of race (Asian), sex, and
reprisal for past EEO activity in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. Specifically,
complainant requests on appeal that the agency's final order adopting
the Administrative Judge's (AJ) decision finding of no discrimination
be reversed. For the following reasons, the Commission AFFIRMS the
final order of the agency.
The record reveals that complainant, a Box Section-Caller Service and
Postage Due Clerk, PS-05, at the agency's Santa Ana, California facility,
filed a formal EEO complaint on June 3, 1999, alleging that the agency
had discriminated against her when:
the agency cancelled her successful bid to a City Clerk position; and
she withdrew her bid for the position of Postage Due Clerk, for which
she had successfully bid, as a result of being misinformed about the
training requirements for the position.<1>
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge. Following a hearing, the AJ issued a decision
finding no discrimination. The agency adopted the AJ's recommendations
in its final order.
The AJ concluded that complainant failed to state a claim as to issue
one because she did not contact an EEO officer for counseling
within forty-five (45) days as required by 29 C.F.R. � 1614.105(a)(1).
In regards to the second issue, the AJ found that complainant was
not an aggrieved person within the meaning of 29 C.F.R. �� 1614.103
or 1614.106(a). Thus, the AJ determined that complainant failed to
state a claim. Complainant makes no new contentions on appeal and the
agency requests that we affirm its final order.
A review of the record reveals: The agency hired complainant in
March 1983. In June of 1989, complainant bid into the position of Box
Section-Caller Service and Postage Due Clerk. Complainant alleges that
she did not have any difficulties with management until Supervisor (S1)
became her supervisor in or around 1996. Complainant alleges that S1
was repeatedly biased against complainant in her dealings with employees
and thus complainant wished to bid out of S1's section.
The AJ found that on December 29, 1997, complainant successfully bid for
City Clerk position, bid number 8584256. Complainant, however, was not
moved into the position within the applicable time, and she complainant
filed a grievance on January 26, 1998. On January 29, 1998, the agency
posted to all city clerks that the bid number 8584256 was cancelled and
complainant would remain in her original position. On January 30, 1998,
complainant received a letter from S1 advising her that her assignment
to City Clerk Position was cancelled. Complainant filed a grievance
challenging the cancellation of the bid assignment.
Meanwhile, complainant obtained a City Clerk Position in July of 1998.
The AJ found that sometime prior to February 8, 1999, complainant
bid for and was awarded the position of Postage Due Clerk, bid number
8966320. Complainant alleges that sometime on or about February 8, 1999,
she received conflicting information about the training requirements for
this position. Complainant spoke with a clerk at the Personnel Employment
Development Center and was told that there was no additional training
required for the Postage Due Clerk Position. However, the supervisor
(S2) of Box Section/ Postage Due, allegedly provided information that
additional training was required.<2> The AJ found the testimony of S2
(that she did not indicated to complainant that training was required
and rather, told her that she would accompany S2 and other Postage Due
Clerks to view the Orange, California postal facility) to be credible.
Soon thereafter, complainant submitted a withdrawal form relinquishing
her awarded bid position of Postage Due Clerk. Complainant testified
that undergoing additional training would not have been a problem.
She also testified that her withdrawal was a result of the conflicting
information about the training and her fear that she would lose her
City Clerk position. Complainant thereafter sought EEO counseling.
See n. 1, supra.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law shall be based on
a de novo standard of review, regardless of whether a hearing was held.
Agency employees may file both a grievance and a complaint pursuant
to 29 C.F.R. � 1614 on the same claim. Equal Employment Opportunity
Commission Management Directive for 29 C.F.R. Part 1614 (EEOC MD-110),
Ch. 4, Sect. III (November 9, 1999). Indeed, complainant chose to file a
grievance after the cancellation of her City Clerk bid in January 1999.
However, complaints of discrimination must be brought to the attention
of an Equal Employment Opportunity Counselor within 45 days of the
date of the matter alleged to be discriminatory or, in the case of a
personnel action, within 45 days of the effective date of the action.
29 C.F.R. �1614.105(a)(1). We agree with the AJ's determination that the
complainant could have reasonably suspected that the agency's actions
were discriminatory around the time the bid was cancelled. 29 C.F.R. �
1614.105; see Howard v. Department of the Navy, EEOC Request No. 05970852
(February 11, 1999) (Commission adopts a "reasonable suspicion" standard
to determine when the 45 day limitation period is triggered). Therefore,
we agree with the AJ's decision to dismiss this claim for failure to
timely seek EEO counseling pursuant to 29 C.F.R.� 1614.107(a)(2).
Agencies or EEOC Administrative Judges may dismiss a complaint that
fails to state a claim. See 29 C.F.R. � 1614.109(b). Generally,
complaints from an aggrieved employee who believes that she has been
discriminated against by an agency because of race, color, religion,
sex, national origin, or disability will be accepted. See 29 C.F.R. ��
1614.103, 1614.106(a). This Commission's federal sector case precedent
has long defined an "aggrieved person" 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 under Title VII. Diaz v. Department of
the Air Force, EEOC Request No. 05931049 (April 21, 1994). Complainant
alleges the misinformation regarding additional training as the agency's
action for her claim of discrimination. As such, we agree with the AJ's
determination that this claim does not give rise to a deprivation that
would render complainant aggrieved. Remarks or comments unaccompanied by
concrete agency action are usually not a direct and personal deprivation
sufficient to render an individual aggrieved for the purposes of Title
VII. See Backo v. United States Postal Service, EEOC Request No. 05960227
(June 10, 1996). In the case at hand, the record does not indicate
that the statement that complainant would or would not need additional
training was accompanied by any concrete agency action. Complainant
never occupied the position nor was she required to participate in
any training. The terms, conditions or privileges of complainant's
employment that were effected came about from complainant's voluntary
withdrawal from the position. Moreover, complainant testified that
other considerations, including discussions with her husband, coworkers,
and friends, influenced her decision to submit the withdrawal form.
Assuming arguendo, that complainant stated a claim for which relief
could be granted, we note that complainant failed to produce probative
evidence that the agency's actions were in retaliation for her prior EEO
activities or were motivated by discriminatory animus toward her race
or sex. Specifically, in order prevail in a disparate treatment claim
such as this, complainant must satisfy the three-part evidentiary scheme
fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). She must generally establish a prima facie case
by demonstrating that she was subjected to an adverse employment action
under circumstances that would support an inference of discrimination.
Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). The prima
facie inquiry may be dispensed with in this case, however, since the
agency has articulated legitimate and nondiscriminatory reasons for its
conduct. See United States Postal Service Board of Governors v. Aikens,
460 U.S. 711, 713-17 (1983); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997). S2's testimony revealed
that she did not tell complainant to undergo additional training for
the position but instead, was making arrangements for all the Postage
Due Clerks and Technicians under her supervision to visit the Orange,
California postal facility because Orange had the best rated Postage Due
Section. S2 intended for complainant to accompany her and other Postage
Due Clerks to the Orange facility in order to observe their practices.
As such, we agree that the agency articulated a reason for its action
that was legitimate and non-discriminatory.
To ultimately prevail, complainant must prove, by a preponderance of the
evidence, that the agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097
(2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993);
Texas Department of Community Affairs v. Burdine, 450 U.S. 248,
256 (1981); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997); Pavelka v. Department of the Navy,
EEOC Request No. 05950351 (December 14, 1995). In the case at hand,
complainant has failed to demonstrate by a preponderance of the evidence
that the underlying motivation for the conflicting statements concerning
training was discrimination based on race, sex, or retaliation for prior
EEO activities.
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. The finding
of the complaint's lack of timeliness in regards to issue one was proper.
The AJ's decision as to issue two was also proper given that complainant
failed to state a claim for which a remedy can be provided. We discern
no basis to disturb the AJ's decision. Therefore, after a careful review
of the record, including arguments and evidence not specifically addressed
in this decision, we affirm the agency's final order.
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
__October 18, 2002________________
Date
1 The record indicates that complainant
initially sought counseling regarding claim (2) and raised allegations
concerning claim (1) in her affidavit. While the record is not entirely
clear, it appears that she was advised to seek EEO counseling if she
wished to pursue claim (1) and, as a result, complainant filed two
separate complaints, which were subsequently consolidated.
2 Prior to the hearing, both parties stipulated that no formal training
existed for the Postage Due Clerk position.