01993071
07-13-2000
Shirley M. Barringer v. United States Postal Service 01993071 July 13, 2000 . Shirley M. Barringer, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Shirley M. Barringer v. United States Postal Service
01993071
July 13, 2000
.
Shirley M. Barringer,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01993071
Agency No. 4B-120-0009-99
DECISION
The Commission finds that the agency's decision dated February 5, 1999,
dismissing claim (1) in complainant's complaint due to untimely EEO
Counselor contact is proper pursuant to the regulation set forth at 64
Fed. Reg. 37,644, 37,656 (to be codified as and hereinafter cited as 29
C.F.R. � 1614.107(a)(2)), however, the dismissal of claim (2) for failure
to state a claim is improper pursuant to the regulation set forth at 64
Fed. Reg. 37,644, 37,656 (to be codified as and hereinafter cited as 29
C.F.R. � 1614.107(a)(1)).<1> In her complaint, complainant alleged that:
(1) since 1993, she was subjected to sexual harassment from her coworker,
forcing her to resign from her employment effective April 18, 1998;
and (2) on September 21, 1998, her request for reinstatement as Rural
Carrier Associate was denied.
In its decision, the agency stated that complainant's July 1998 EEO
contact, through an identified Post Office Operations Manager, was beyond
the 45-day time limit with regard to claim (1). The EEO Counselor's
Report indicates that complainant contacted an EEO Counselor with regard
to her complaint on October 29, 1998. With regard to complainant's claim
that she was not informed of the EEO process, the agency indicated that
it displayed EEO posters at the postal facility where complainant was
employed. The agency also submitted a Postmaster's affidavit confirming
that
the EEO posters, including the requisite time limit, were on display
at complainant's workplace when complainant was employed.<2> Thus,
the Commission finds that complainant had constructive knowledge of her
EEO rights, including the requisite time limit. Thompson v. Department
of the Army, EEOC Request 05910474 (September 12, 1991).
With regard to claim (2), the agency stated, in its decision, that the
Collective Bargaining Agreement between the agency and the National
Rural Letter Carriers' Association, Article 30.2, prohibited the
reinstatement of former non-career employees into vacant Rural Carrier
Associate positions. The agency indicated that since complainant was
formerly employed as a non-career Rural Carrier Associate, the alleged
denial of reinstatement failed to state a claim. Upon review, it appears
that the agency has improperly addressed the merits of claim (2) in a
procedural decision. See Lee v. United States Postal Service, EEOC Request
No. 05930220 (August 12, 1993) (citing Odoski v. Department of Energy,
EEOC Appeal No. 01901491 (April 16, 1990)). The Commission finds that
complainant is aggrieved as a result of the allegedly discriminatory
denial of reinstatement and, thus, states a claim within the purview of
the regulations.
Accordingly, the agency's decision dismissing claim (1) is AFFIRMED. The
agency's decision dismissing claim (2) is hereby REVERSED and claim (2)
is REMANDED to the agency for further processing in accordance with this
decision and applicable regulations.
ORDER (E0400)
The agency is ORDERED to process the remanded claim 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 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 (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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (T0400)
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:
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 13, 2000
__________________
Date
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.
2It is noted that although the agency's EEO poster, printed January
1990, contains outdated information with regard to the requisite time
limit to contact an EEO Counselor, i.e., 30 days, instead of 45 days,
complainant does not claim that her untimely EEO contact was due to
such information. The agency is hereby advised to update its EEO posters
in accordance with the current law, including the 45-day time limit to
contact an EEO Counselor.