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.