0120093386
04-15-2011
Michael R. Pottorf, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Western Area), Agency.
Michael R. Pottorf,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal No. 0120093386
Agency No. 4E-680-0026-09
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
final decision dated July 13, 2009, dismissing a formal 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.
BACKGROUND
During the period at issue, Complainant was employed as a Postmaster,
EAS-16, at the Agency's Sedgwick, Kansas Post Office.
On March 18, 2009, Complainant initiated EEO Counselor contact.
Informal efforts to resolve his concerns were unsuccessful.
On June 11, 2009, Complainant filed the instant formal complaint.
Therein, Complainant claimed that the Agency subjected him to
discrimination on the bases of race (Caucasian), sex (male), and age (57)
when, on or about October 2, 2008, he was placed off work on Emergency
Placement, and subsequently forced to take a voluntary reassignment
effective January 31, 2009.1
In its July 13, 2009 final decision, the Agency dismissed Complainant's
formal complaint on the grounds of untimely EEO Counselor contact,
pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency determined that
Complainant's initial EEO Counselor contact occurred on March 18, 2009,
which it found to be beyond the 45-day limitation period. Specifically,
the Agency determined that Complainant's claim of discrimination arose
no later than the January 31, 2009 effective date of his involuntary
reassignment, but his EEO counselor contact was beyond the forty-five
(45) day limitation period. The Agency also noted that Complainant knew
or should have known the time limits because EEO posters addressing the
45-day requisite time period were on display in Complainant's workplace
during the time.
The Agency also dismissed the instant formal complaint on alternative
grounds for failure to state a claim pursuant to 29 C.F.R. �
1614.107(a)(1. The Agency determined this claim constituted a collateral
attack on the proceedings of another forum. Specifically, the Agency
found that Complainant's reassignment to a lower level position was the
result of a resolution through a management appeals procedure, and the
instant complaint is now challenging that resolution.
ANALYSIS AND FINDINGS
Untimely EEO Counselor Contact
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 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.
In her report, the EEO Counselor noted that Complainant stated during
the initial interview that he realized his claims were past the 45-day
time limit. However, Complainant determined that he only developed
a reasonable suspicion of unlawful employment discrimination in mid
to late March 2009, when a named Western Area Vice President (African
American male, younger than Complainant) made an inflammatory statement
in a March 2009 teleconference, but was not taken out of his job in the
manner in which Complainant was treated.2 According to Complainant,
this was the first time he realized he was not treated the same as other
similarly situated employees. The Agency has provided no evidence in
rebuttal to Complainant's assertion of when he developed a reasonable
suspicion of discrimination. Accordingly, we determine that Complainant's
initial EEO contact on March 18, 2009, was within forty-five days of when
Complainant first developed a reasonable suspicion of discrimination.
Failure to State a Claim
The Commission has held that an employee cannot use the EEO complaint
process to lodge a collateral attack on another adjudicatory proceeding.
See Wills V. Department of Defense, EEOC Request No. 05970596 (July
30, 1998); Kleinman v. U.S. Postal Service, EEOC Request No. 05940585
(Sept. 22, 1994); Lingad v. U.S. Postal Service, EEOC Request No. 05930106
(June 25, 1993). However, we find in this case, there is inadequate
support for a finding that Complainant was collaterally attacking a
decision rendered in another adjudicatory process. The record is not
clear that the management appeals procedure was adjudicatory in nature
or that a decision was issued which Complainant is now challenging.
Rather, a fair reading of the complaint and related EEO counseling
report reveals that Complainant alleged that he agreed to accept the
reassignment to a lower level position under duress to avoid being
fired, while other Agency employees "have all remained 'whole' despite
their similar violations of same policy." This states a viable claim
of disparate treatment under the administrative EEO complaints process.
Accordingly, we REVERSE the Agency's dismissal of the instant complaint
on the grounds of untimely EEO Counselor contact and failure to state
a claim, and we REMAND this matter to the Agency for further processing
in accordance with the ORDER below.
ORDER (E0610)
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 (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
April 15, 2011
__________________
Date
1 These actions were precipitated when Complainant purportedly stated
that, "If God gave me one free bullet and I knew I would not get caught,
I would use it on [Employee JO]."
2 Complainant asserted that he learned that in the March 2009
teleconference, the Western Area Vice President made a statement to the
effect that, ". . . employees should be taken out and executed. . ."
Complainant further asserted that he then learned that a younger African
American female was also treated more favorably than he was for a
violation of the "no tolerance for violence" policy.
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0120093386
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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