01982415
03-17-2000
Roslyn Y. Bowens, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Roslyn Y. Bowens v. United States Postal Service
01982415
March 17, 2000
Roslyn Y. Bowens, )
Complainant, )
)
v. ) Appeal No. 01982415
) Agency No. 4C-190-0213-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Complainant filed an appeal with this Commission from a final decision of
the agency concerning her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq., and Section 501 of the Rehabilitation Act of
1973, as amended, 29 U.S.C. 791 et seq.<1> The final agency decision was
issued on January 6, 1998. The appeal was postmarked January 30, 1998.
Accordingly, the appeal is timely (see 64 Fed. Reg. 37,644, 37,659
(1999) (to be codified and hereinafter cited as 29 C.F.R. �1614.402(a)),
and is accepted in accordance with 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified at 29 C.F.R. �1614.405).
ISSUES PRESENTED
1. The first issue on appeal is whether the agency properly dismissed
claims 2-3 of the complaint on the grounds of untimely EEO contact.
2. The second issue on appeal is whether the agency properly dismissed
claim 1 of the complaint on the grounds that it states the same claim
as that pending before or has been decided by the agency.
BACKGROUND
Complainant initiated contact with an EEO Counselor on June 11, 1997.
In a formal EEO complaint dated October 24, 1997, complainant claimed
that she was discriminated against on the bases of her sex (female)
and physical disability (perceived-pregnancy) when:
1. On May 7, 1997, she was told that her request for a transfer was
denied because she could have had an accident that would cause her to
lose her baby and the agency could be liable.
2. On April 4, 1997, she was notified that she had not been selected
for a promotion.
3. On January 30, 1997, she was denied her light duty request for a
transfer to another station no more than fifteen minutes from her home.
In its final decision, the agency dismissed claims 2-3 of the complaint
on the grounds that complainant failed to contact an EEO Counselor in
a timely manner. The agency determined that complainant initiated contact
with an EEO Counselor on June 11, 1997, which was more than 45 days after
the incidents that occurred on January 30, 1997, and April 4, 1997,
respectively. The first claim was dismissed on the grounds that it states
the same claim that is pending before or has been decided by the agency.
According to the agency, the first claim is identical and arises from the
same transaction as the matters raised in claims 2-3. The agency
determined that all of the claims arise from the same set of facts and
circumstances.
On appeal, complainant maintains that with regard to claim 3 it was
not until June 1997, that she learned that a white male who had been in
a car accident had his request for a transfer approved. According to
complainant, she was told that the agency was not required to accommodate
her because her pregnancy was not related to her position. Complainant
states that she had no reason to question what she had been told until
she learned that the white male's request for a transfer was approved.
With regard to claim 2, complainant contends that she did not know until
May 7, 1997, why she was not promoted to the supervisory position.
Complainant states that she was informed on that date that she was
not selected because of her limited time in a supervisory capacity.
The record indicates that complainant believes she would have had
sufficient time to demonstrate her abilities in a supervisory capacity
had her request for a transfer been granted.
ANALYSIS AND FINDINGS
Volume 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter
cited as 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. 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.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
The record reveals that complainant was notified on April 4, 1997, that
she was not selected for a promotion to the position of Supervisor,
Customer Service, EAS-16. On January 30, 1997, the agency denied
complainant's light duty request to be transferred to another station no
more than fifteen minutes from her home. On appeal, complainant claims
that she was unaware of the alleged discrimination with regard to her
non-promotion until May 7, 1997, when she was informed that she was
not promoted due to her limited experience in a supervisory capacity.
Complainant attributes her limited time as a supervisor to the agency's
denial of her transfer request during her pregnancy. Complainant also
claims that she did not know the denial of her transfer request was the
result of discrimination until she learned in June 1997, that a white
male's request for a transfer had been approved. The agency failed to
present any evidence to show that complainant had a reasonable suspicion
of discrimination prior to her obtaining further information about these
incidents. The agency has the burden of providing evidence and/or proof
to support its final decisions. Ericson v. Department of the Army,
EEOC Request No. 05920623 (January 14, 1993); Gens v. Department of
Defense, EEOC Request No. 05910837 (January 31, 1992). Consequently,
we find that complainant's contact of an EEO Counselor on June 11,
1998, was timely with respect to claims 2-3. Accordingly, the agency's
dismissal of claims 2-3 of the complaint on the grounds of untimely EEO
contact was improper and is REVERSED. These claims are hereby REMANDED
for further processing pursuant to the ORDER below.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. � 1614.107(a)(1)) provides that the agency shall
dismiss a complaint that states the same claim that is pending before
or has been decided by the agency or Commission.
With regard to claim 1 of her complaint, we find that the agency's
dismissal was proper. In claim 1, complainant sets forth the agency's
articulated reason for the denial of her transfer, which is the issue
in claim 3. We note, however, that complainant does not identify any
different adverse action in claim 1, then that already set forth in
claim 3. Accordingly, the agency's decision to dismiss claim 1 on the
grounds that it set forth the same claim as raised in claim 3 was proper
and is AFFIRMED.
CONCLUSION
The agency's dismissal of claim 1 of the subject complaint is hereby
AFFIRMED. The agency's dismissal of claims 2-3 of the subject complaint
is hereby REVERSED. Claims 2-3 are hereby REMANDED for further processing
pursuant to the ORDER below.
ORDER (E1199)
The agency is ORDERED to process the remanded claims (Claims 2-3) in
accordance with 64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified
and hereinafter referred to as 29 C.F.R. � 1614.108). The agency shall
acknowledge to the complainant that it has received the remanded claims
(Claims 2-3) 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 an
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 (K1199)
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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (T1199)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed AND that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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:
March 17, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to
all Federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply the
revised regulations found at 64 Fed. Reg. 37,644 (1999), where applicable,
in deciding the present appeal. The regulations, as amended, may also be
found at the Commission's website at WWW.EEOC.GOV.