0120100227
06-21-2011
Sharon Cross, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Northeast Area), Agency.
Sharon Cross,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Northeast Area),
Agency.
Appeal No. 0120100227
Agency No. 1B-121-0010-09
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated September 8, 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., 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
Complainant, a former Flat Sorter Machine Operator at the Agency's Utica, New York Processing and Distribution Center, initiated EEO Counselor contact on July 13, 2009. Informal efforts to resolve her concerns were unsuccessful.
On August 18, 2009, Complainant filed the instant formal complaint. Therein, Complainant claimed that she was the victim of unlawful employment discrimination on the bases of sex, disability, age, and in reprisal for prior protected activity when:
on or about June 22, 2009, she received the PS Form 50, Notification of Personnel Action, which indicated that she was removed from Agency employment effective May 18, 2009, on the charge of submitting falsified medical documentation.
The record reflects that by an earlier Notice of Removal dated January 14, 2008, Complainant was informed that she would be removed on February 23, 2008, from Agency employment for submitting falsified medical documentation. It appears, however, that she was retained on the Agency's rolls, in a non-pay status, until May 19, 2009, the official effective date of her removal. The record also contains a Form 50, Notification of Personnel Action, regarding Complainant's "removal" from Agency employment. The effective date of the removal action is identified as "05-18-2009."
In its September 8, 2009 final decision, the Agency dismissed the instant 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 contact occurred well beyond the 45-day limitation period after the alleged discriminatory event occurred. Specifically, while noting that Complainant claimed that her time should run from June 22, 2009, when she says she received the PS Form 50, Notification of Personnel Action, indicating her removal was effective May 19, 2009, the Agency asserted that Complainant was made aware of the reason for the removal action well before receiving the Notification of Personnel Action on June 22, 2009, as she filed a grievance concerning her removal before the June 22, 2009 receipt of the PS Form 50. The Agency noted that on May 18, 2009, Complainant's grievance was dismissed for failure to appear at a scheduled arbitration on April 21, 2009. The record also contains a copy of the EEO Counselor's Report. Therein, the EEO Counselor stated that on July 6, 2009, Complainant filed an appeal with the Merits System Protection Board concerning her removal, but it was dismissed for lack of jurisdiction.
The Agency also found that Complainant failed to exercise due diligence in contacting an EEO Counselor. Finally, the Agency indicated that because EEO posters with timeframes were on display in Complainant's workplace, she was, or should have been familiar with the 45-day limitation period. The record contains a copy of the Supervisor, Customer Services Support (SCSS)'s affidavit dated December 13, 2007. Therein, SCSS stated that EEO Poster 72 "was placed in the following locations on 9/7/2006 and they have been posted there since. The locations are 1) the personnel board and PEDC board both located in the front offices, 2) on the workroom floor on the a) clerks board, b) mail handlers board, c) carriers board, and d) maintenance board, 3) the VMF board located in the garage, 4) Keman Station on the employees board on the workroom floor, and 5) at Butterfield Station on the workroom floor on the employee's board." SCSS further stated that the EEO Poster 72 "states that an employee must bring individual and class action complaints to the attention of the EEO office by requesting counseling within 45 days of the date of the alleged act, within 45 days of the dated when they reasonable should have known about the discrimination, or if a personnel action is involved, within 45 days of the effective date of the action."
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the Agency improperly dismissed her formal complaint for untimely EEO Counselor contact. Complainant argues that she was not aware of her removal "until June 22, 2009, was misled by [the Agency's] failure to contact her for many months with properly provide notices. Was not aware of time limits to file and without proof the USPS should be stopped from arguing otherwise." Complainant further argues that she "was notified by a SF 50 personnel decision on or about June 22, 2009 and filed her EEO action." Moreover, Complainant argues the merits of her case.
ANALYSIS AND FINDINGS
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.
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 discloses that the "effective date" of the alleged discriminatory event (removal), as expressly manifested by an Agency SF-50 Personnel Action, was "05-18-2009." The record discloses no evidence supporting a determination that following the issuance of this SF-50, Complainant was made aware of the effective date of this action prior to her June 22, 2009 receipt of a copy of the SF-50 and more than forty-five days before her initial EEO contact of July 13, 2009. Given the circumstances of this case, the Commission determines that Complainant's July 2009 initial EEO contact was timely raised with regard to the effective date of the Agency removal action of May 18, 2009.
The Agency's final decision dismissing Complainant's formal complaint on the grounds of untimely EEO Counselor contact is REVERSED. The formal complaint is REMANDED to the Agency for further processing in accordance with the Order below.
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 claim 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
June 21, 2011
__________________
Date
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0120100227
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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