01980653
02-18-1999
Soraya Noland, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Soraya Noland v. United States Postal Service
01980653
February 18, 1999
Soraya Noland, )
Appellant, )
)
v. ) Appeal No. 01980653
) Agency No. HO-0029-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
The appellant timely filed an appeal with this Commission from a final
decision, dated September 29, 1997, which the agency issued pursuant to
EEOC Regulation 29 C.F.R. �1614.107(a) and (b). The Commission accepts
the appellant's appeal in accordance with EEOC Order No. 960, as amended.
The final agency decision identified 14 issues raised by the appellant's
February 19, 1997 complaint. The decision dismissed issues 3, 5, and 6
for failure to state a claim. The decision dismissed issues 8 through
13 for untimely EEO counselor contact.
On appeal, the appellant contends that she has been subjected to a
continuous pattern and practice of sexual discrimination and harassment.
The appellant also contends that the dismissed issues are interrelated
to the issues the agency accepted for investigation. The appellant
further contends that the agency's determinations that the appellant
was not aggrieved by some of the agency's acts were premature.
After a review of the record, the Commission finds that the agency
properly dismissed issue 3 (no credit given for a report the
appellant wrote) and 6 (accused and threatened for allegedly not
submitting information on a statistical analysis) for failure to
state independent claims of discrimination. The appellant has not
alleged that these incidents have adversely affected a specific term,
condition, or privilege of her employment. For example, the appellant
has not alleged that she has been disciplined about these matters or
that her performance appraisal has been lowered due to these incidents.
However, the Commission finds that factual allegations 3 and 6 should be
investigated as part of the appellant's hostile work environment claim
(issue 7). See Cobb v. Department of the Treasury, EEOC Request No.
05970077 (March 13, 1997).
The Commission finds that the agency improperly dismissed issue 5 for
failure to state a claim. In issue 5, the appellant alleged that based
on her sex she was assigned a broken lap top computer. In complaining
about being assigned faulty equipment, the appellant has stated a claim
of adverse treatment regarding a term, condition or privilege of her
employment.
The Commission finds that the agency improperly dismissed issue 8 for
untimely EEO counselor contact. The appellant alleged that her March
29, 1996 request for a detail assignment was not answered. Therefore,
the alleged failure to grant the appellant the requested detail was
ongoing at the time of her counseling request.
The Commission finds that the appellant's October 4, 1996 request for
counseling was untimely regarding issues 9 (December 18, 1995 denial of
training), 10 (February 13, 1996 denial of requested detail), 11 (February
16, 1996 denial of opportunity to serve as Acting Manager), 12 (April 27,
1995 reprimand), and 13 (September 1992 loss of Program Manager title).
The appellant knew at the time of the denials of training, details, and
Acting Manager assignments, that males were given such career enhancing
opportunities. Therefore, the Commission finds that a reasonable
person in the appellant's position would have suspected discrimination
and acted to protect her rights. See Sabree v. United Brotherhood of
Carpenters and Joiners Local No. 33, 921 F.2d 396, 402 (1st Cir. 1990)
(a knowing plaintiff has an obligation to file promptly with the EEOC
or lose his claim); Roberts v. Gadsden Memorial Hospital, 850 F.2d 1549
(11th Cir. 1988) (per curiam) (a claim arising out of an injury which is
"continuing" only because a plaintiff knowingly fails to seek relief is
exactly the sort of claim that Congress intended to bar by the limitations
period).
The appellant claims not to have suspected discrimination regarding
the loss of her Program Manager title in 1992 until late August 1992.
The appellant represents that she then learned that several males had
been placed in positions for which she was better qualified pursuant
to a 1992 reduction in force (RIF). The Commission finds that the
time to challenge a RIF action is when it occurs, not four years later.
The appellant should have looked into the availability of other positions
for which she was qualified at the time she received her RIF offer.
The agency is reminded that it should consider evidence pertaining to
the untimely raised allegations as background evidence for the relevant
accepted issues.
CONCLUSION
For the reasons stated above, the Commission AFFIRMS the agency's
dismissal of issues 3, 6, 9, 10, 11, 12, and 13; REVERSES the agency's
dismissal of issues 5 and 8; REMANDS issues 5 and 8 to the agency for
processing as ORDERED below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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� (Supp. V 1993).
If the appellant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision 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 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.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
Feb 18, 1999
______________
Date Ronnie Blumenthal, Director
Office of Federal Operations