Theresa K. McNeff, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 14, 2003
01A34268_r (E.E.O.C. Oct. 14, 2003)

01A34268_r

10-14-2003

Theresa K. McNeff, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Theresa K. McNeff v. United States Postal Service

01A34268

October 14, 2003

.

Theresa K. McNeff,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A34268

Agency No. 1E-642-0008-03

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated June 12, 2003, 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., 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.

On December 11, 2002, complainant initiated EEO Counselor

contact. Informal efforts to resolve her concerns were unsuccessful.

In her formal complaint, filed on February 18, 2003, complainant alleged

that she was subjected to discrimination on the bases of disability,

age, and in reprisal for prior protected activity when:

(1) on December 5, 2002, she was made aware that a female custodian had

broken her ankle off the job and was given a sit down job upstairs in

the office. Complainant further alleged that she broke her ankle in

October 2000, and on January 29, 2001, she came to work on light duty

but was not given a sit down job; and

(2) on December 26, 2002, she was called into the office and her manager

told her that the manager involved in this complaint was a very powerful

man and that he did not know what the manager might do.

The agency dismissed claim (1) pursuant to 29 C.F.R. � 1614.107(a)(2),

for untimely EEO Counselor contact. Specifically, the agency determined

that complainant did not contact an EEO Counselor until December 11,

2002, and that complainant had a reasonable suspicion of discrimination

more than 45 days before initiating contact. The agency noted, moreover,

that complainant filed a �different EEO complaint� regarding a broken

ankle and a light duty request on August 9, 2001.<1>

The agency dismissed claim (2) pursuant to 29 C.F.R. � 1614.107(a)(1), for

failure to state a claim. The agency reasoned that complainant failed to

allege a harm regarding a term, condition, or privilege of her employment.

Claim (1)

The Commission has adopted a "reasonable suspicion" standard (as opposed

to a "supportive facts" standard) to determine when the limitation period

is triggered under the EEOC Regulations. See 29 C.F.R. � 1614.105(a)(2);

Ball v. United States Postal Service, EEOC Request No. 05880247 (July 6,

1988). Thus, the limitations period is not triggered until a complainant

reasonably should have suspected discrimination, but before all the

facts that would support a charge of discrimination have become apparent.

Regarding claim (1), the Commission determines that the alleged

discriminatory event occurred on January 29, 2001, but that complainant

did not contact an EEO Counselor until December 11, 2002, which is well

beyond the forty-five-day limitation period. In her formal complaint,

complainant stated that she was unaware of the alleged discrimination

until December 5, 2002, when she became aware that a younger female

employee had also broken her ankle and was given a sit down job in the

office. The Commission determines, however, that the record supports a

determination that complainant had, or should have had, a reasonable

suspicion of unlawful employment discrimination more than forty-five

days prior to her December 11, 2002 contact. Therefore, we find that

the agency properly dismissed claim (1) for untimely Counselor contact.

Claim (2)

Regarding claim (2), we find that the agency properly dismissed claim

(2) for failure to state a claim. The Commission has consistently

held that a remark or comment unaccompanied by concrete action is not

a direct and personal deprivation sufficient to render an individual

aggrieved for the purposes of Title VII. Henry v. USPS, EEOC Request

No. 05940695 (February 9, 1995). There is no evidence in the record that

complainant was issued any disciplinary action as a result of the alleged

remarks. Thus, we find that claim (2) fails to state a claim within the

purview of the regulations.

Accordingly, the agency's final decision dismissing complainant's

complaint is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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), 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 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 (S0900)

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. 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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

October 14, 2003

__________________

Date

1The record does not contain a copy of

the �different EEO complaint� of August 9, 2001, as identified by the

agency. The record does, however, contain a copy of an Information for

Pre-Complaint Counseling form dated August 9, 2001. Therein, complainant

claimed that she received a letter indicating that she could not keep her

job in maintenance because of permanent restrictions on her ankle; that

she unsuccessfully requested reasonable accommodation; and that since

January 30, 2001, she has been improperly assigned to work eight-hour

days, five days per week. It appears that while complainant initiated

the EEO complaint process regarding the matter addressed in claim

(1) in August 2001, she abandoned this matter until she initiated EEO

Counselor contact in December 2002, as noted above. We note, moreover,

that even if the August 2001 EEO contact were construed as her initial

EEO Counselor contact date, it would be untimely in regard to an alleged

discriminatory event that occurred in late January 2001.