0120112940
10-20-2011
Maria C. Anguiano, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Maria C. Anguiano,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120112940
Agency No. 4G780006111
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated April 18, 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. and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. § 791 et seq. Upon review, the Commission finds that
Complainant's complaint was properly dismissed pursuant to 29 C.F.R. §
1614.107(a)(1) for failure to state a claim and failure to contact an
EEO counselor in a timely anner.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Supervisor Customer Services at the Agency’s North East Carrier
Annex in San Antonio, Texas.
On March 22, 2011, Complainant filed a formal complaint alleging that the
Agency subjected her to discrimination on the bases of national origin
(Mexican American), sex (female), and age (61) when (1) on November 6,
2010, Complainant advised her manager of a threat of bodily harm by
a co-worker and the manager failed to take appropriate action; (2)
on December 6, 2010, Complainant was arbitrarily moved from her bid
position at the NE Annex to Cedar Elm: and (3) Complainant has been
continuously harassed between the years 2004 and 2008.
The Agency dismissed claims 1 and 2 for failure to state a claim The
Agency stated that Complainant has not alleged that there were further
incidents after she reported her concerns. The Agency noted that the
transfer to Cedar Elm was on paper only, and Complainant has not been
physically transferred. As to claim 3, the Agency dismissed the claim
for failure to contact an EEO counselor in a timely manner. The Agency
noted that one of her claims was that in 2008 she was moved bacj to her
bid position and that it was a discrete act The Agency also noted she had
raised the claim that she was frequently reassigned in a prior complaint.
ANALYSIS AND FINDINGS
The Commission finds claims 1 and 2 fail to state a claim under the
EEOC regulations. 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). When the complainant does not
allege he or she is aggrieved within the meaning of the regulations,
the agency shall dismiss the complaint for failure to state a claim
pursuant to 29 C.F.R. § 1614.107(a)(1). In the instant case, Complainant
failed to alleged facts, which if proven true and considered together,
would establish that she suffered harm or loss with respect to a term,
condition, or privilege of employment for which there is a remedy.
To that extent, Complainant has not been physically moved to another
facility.
As to claim 3, 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. Dep’t of the Navy, EEOC Request No. 05970852 (Feb. 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.
In claim 3, Complainant raises a claim of harassment with respect to
being reassigned frequently. To that extent a reassignment is viewed
as a discrete act. As such the record supports that Agency’s findings
that Complainant failed to contact an EEO counselor in a timely manner
as to this claim since her counselor contact was nearly 2 years later.
Accordingly, the Agency's final decision dismissing Complainant's
complaint is AFFIRMED.
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 (S0610)
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 (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
October 20, 2011
__________________
Date
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0120112940
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112940