Lisa M. Crighton, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 31, 2007
0120071783 (E.E.O.C. May. 31, 2007)

0120071783

05-31-2007

Lisa M. Crighton, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Lisa M. Crighton,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120071783

Agency No. 1J-482-0001-07

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated January 31, 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.

Upon review, the Commission finds that complainant's complaint was

improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2).

On October 25, 2006, complainant initiated contact with an Equal

Employment Opportunity (EEO) Counselor and, subsequently, filed a formal

EEO complaint, alleging that the agency discriminated against her on the

bases of race (Caucasian) and sex (female) when, on August 1, 2006, it

issued her a Notice removing her from employment that became effective

October 19, 2006. Complainant alleged that coworkers outside of her

protected classes were disciplined less severely.

In its January 31, 2007 final decision, the agency dismissed complainant's

complaint for untimely EEO Counselor contact, stating that complainant

initiated EEO contact approximately 85 days after the date the agency

issued her a Notice of Removal. The instant appeal from complainant

followed. On appeal, complainant stated that she filed a union grievance

regarding the Notice of Removal so it was her understanding that the

disciplinary action was "in limbo" between August 2006 and October 19,

2006. Complainant added that she initiated EEO contact shortly after

the Notice was made final - October 19.

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.

Here, the agency calculated the aforementioned 45-day time-frame from the

date that it issued the Notice of Removal rather than from the ultimate

effective date of the Notice. As stated previously, in 29 C.F.R. �

1614.105(a)(1), 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.

Following the union grievance process, the effective date of the removal

became October 19, 2006 and complainant initiated EEO contact on October

25, 2006, which is within 45 days of that date. Accordingly, we REVERSE

the agency's final decision and REMAND the matter consistent with this

decision and the order below.

ORDER (E0900)

The agency is ordered to process the remanded claims in accordance with

29 C.F.R. � 1614.108. 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 (K0501)

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 19848,

Washington, D.C. 20036. 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 (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 (R0900)

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 (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

May 31, 2007

__________________

Date

2

0120071783

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

4

0120071783