Theresa E. Hause, Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity CommissionDec 13, 2012
0120122952 (E.E.O.C. Dec. 13, 2012)

0120122952

12-13-2012

Theresa E. Hause, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.


Theresa E. Hause,

Complainant,

v.

Patrick R. Donahoe,

Postmaster General,

United States Postal Service

(Great Lakes Area),

Agency.

Appeal No. 0120122952

Agency No. 1J-491-0006-12

DECISION

On July 6, 2012, Complainant filed a timely appeal with the Equal Employment Opportunity this Commission (EEOC or Commission) from a final Agency decision (FAD) dated June 18, 2012, dismissing her 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

At the time of events giving rise to this complaint, Complainant worked as a Mail Handler at the Agency's Lansing Processing & Distribution Center (P&DC) in Michigan.

On May 8, 2012, Complainant filed a formal complaint alleging that she was discriminated against based on her race (White American), color (White), sex (female), and age (unstated) when on November 18, 2011, co-worker 1 cursed at her and she was put out of the facility (individual claim). In the complaint Complainant requested a second form to file her class action complaint alleging discrimination when, management announced on February 22, 2012, that the Lansing P&DC was closing. She explained that she did not feel her individual and class claims should be combined.

Complainant initiated EEO counseling on her individual claim on January 19, 2012. She initiated EEO counseling on her class claim on or about March 1, 2012. She received EEO counseling on both claims together.

In the FAD the Agency defined the complaint as containing both the individual and class claims. It dismissed the individual claim for failure to timely initiate EEO counseling. 29 C.F.R. � 1614.105(a)(1) & .107(a)(2). It reasoned that the event occurred on November 18, 2011, and Complainant did not initiate EEO counseling until January 19, 2012, beyond the 45 calendar day time limit. The Agency dismissed the class claim for failure to state a claim. 29 C.F.R. � 1614.107(a)(1). It reasoned that Complainant was not aggrieved because the closure was a proposed action.

ANALYSIS AND FINDINGS

An aggrieved person must seek EEO counseling within 45 days of the date of the alleged discriminatory action, or in the case of a personnel action, within 45 days of the effective date of the action. 29 C.F.R. � 1614.105(a)(1) & .107(a)(2). This time limit can be extended for reasons considered sufficient by the agency or the Commission. 29 C.F.R. � 1614.105(a)(2). Complainant explains on appeal that while the incident occurred in November she waited until January to file her complaint because co-worker 1 was allowed to work until the week before Christmas (when he retired), and this was a discriminatory factor.1 While incidents of harassment by co-worker 1 give rise to claims, his mere presence in the form of being permitted to work until he retired does not. The Agency's dismissal of her individual claim is affirmed.

EEOC Regulation 29 C.F.R. � 1614.204(d) provides that:

(1) Within 30 days of an agency's receipt of a class complaint, the agency shall: Designate an agency representative...and forward the complaint, along with a copy of the Counselor's report and any other information pertaining to timeliness or other relevant circumstances related to the complaint, to the Commission. The Commission shall assign the complaint to an administrative judge....(2) The administrative judge may dismiss the complaint, or any portion, for any of the reasons listed in � 1614.107 or because it does not meet the prerequisites of a class complaint under � 1614.204(a)(2).

In light of the above regulation, the Agency did not have jurisdiction to rule on Complainant's class claim without first forwarding the matter to an EEOC Administrative Judge (AJ) for adjudication and processing under 29 C.F.R. � 1614.204. The EEOC's electronic case tracking records do not show that the Agency referred Complainant's class action matter to an EEOC hearings unit for adjudication.

On appeal Complainant does not comment on her class action claim. Based upon a reading of Complainant's complaint and a review of the record, it is not clear whether Complainant filed a formal complaint on her class action claim. This will be addressed in the order below.

The Agency's decision to dismiss Complainant's individual claim is AFFIRMED, and its decision to dismiss her class claim is VACATED. The Agency shall comply with the order below.

ORDER

On remand, the Agency shall ask Complainant to clarify in writing whether she intended to file a class action complaint on the closing of the Lansing P&DC in Michigan, and to permit her to do so if she has not already filed one.2 If Complainant filed or files such a class action complaint the Agency shall comply with 29 C.F.R. � 1614.204(d)(1), including forwarding to the Hearings Unit of the appropriate EEOC field or district office the entire record in complaint 1J-491-0006-12, including this decision and a cover letter explaining this regards a class action. The Agency shall complete this within 30 calendar days after this decision becomes final.

The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation of the Agency's compliance, and be copied to Complainant.

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 (T0610)

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 (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

December 13, 2012

__________________

Date

1 In her Information for Pre-Complaint Counseling (intake) Complainant raised numerous incidents of alleged discriminatory harassment by co-worker 1 and others, but only raised the November 18, 2011, incident in her complaint.

2 We are not ruling on whether the Complainant's complaint filed on May 8, 2012, should be interpreted as including the class action claim.

---------------

------------------------------------------------------------

---------------

------------------------------------------------------------

2

0120122952

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0120122952