0120112330
08-25-2011
Linda Copelin, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.
Linda Copelin,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Great Lakes Area),
Agency.
Appeal No. 0120112330
Agency No. 4J460002311
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated March 14, 2011, 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a City Carrier at the Agency’s facility in Dyer, Indiana.
On February 25, 2011, Complainant filed a formal complaint alleging that
the Agency subjected her to discrimination on the bases of sex (female),
disability, and age (53) when she was removed from her position.
Complainant was issued a letter of removal on April 29, 2010, for
allegedly violating a last chance agreement. Complainant grieved her
removal. During the processing of the grievance, she remained on the
Agency’s rolls. On November 26, 2010, a arbitration decision upheld
the removal. According to the Dispute Resolution Specialist’s report,
the removal then became effective on November 29, 2010. Complainant
contacted an EEO counselor on December 10, 2010.
The Agency dismissed the EEO complaint, pursuant to 29 C.F.R. §�
�1614.107(a)(2), for untimely EEO Counselor contact. The Agency
reasoned that Complainant received the removal notice on April 29,
2010, and her last day in pay status was July 10, 2010, but she did
not contact an EEO counselor until December 10, 2010. The Agency also
noted the use of the grievance process does not toll the time limit for
contacting an EEO counselor. The Agency also argued that to the extent
that Complainant was attacking the arbitration decision, the matter was
barred by collateral estoppel.
The instant appeal followed.
ANALYSIS AND FINDINGS
As an initial matter, we are unpersuaded by the Agency’s argument that
the instant EEO complaint should be dismissed because Complainant also
pursued the matter through the negotiated grievance process, ending in an
arbitration decision upholding the removal. Unlike many other federal
agencies, the Postal Service is not subject to 5 U.S.C. § 7121(d),
so its employees are not obligated to make an election between pursuing
their claim through the negotiated grievance process or the EEO complaint
process. 29 C.F.R. § 1614.301(c). Therefore, Complainant was entitled
to challenge her termination under both the grievance process and the
EEO complaint process.
With regard to the timeliness issue, the Commission’s regulations at
29 C.F.R. § 1614.105(a)(1) specifically state that in the case of a
personnel action, an aggrieved employee must contact an EEO counselor with
45 days of the effective date. In this case the effective date of the
removal was November 29, 2010, and Complainant initiated contact with an
EEO Counselor on December 10, 2010, which is within the forty-five (45)
day limitation period. As such, Complainant’s EEO counselor contact
was timely.
Accordingly, the Agency's final decision dismissing Complainant's
complaint is REVERSED and the complaint is REMANDED for further processing
in accordance with the following Order.
ORDER (E0610)
The Agency is ordered to process the remanded claim in accordance with
29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the
Complainant that it has received the remanded claims 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 (K0610)
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 77960, Washington, DC
20013. 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 (M0610)
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), at 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
77960, Washington, DC 20013. 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 (R0610)
This is a decision requiring the Agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the Agency, or filed your appeal with the
Commission. 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.
Filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
August 25, 2011
__________________
Date
2
0120112330
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112330