0120092663
12-18-2009
Viola D. Johnson-Washington, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Viola D. Johnson-Washington,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120092663
Agency No. 4H327006309
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated April 29, 2009, 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. Upon
review, the Commission finds that complainant's complaint was improperly
dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state
a claim. For the following reasons, the Commission MODIFIES.
ISSUES PRESENTED
Whether the agency properly dismissed: claim (1) for failure to timely
contact a counselor; and claim (2) for failure to state a claim.
BACKGROUND
At the time of the alleged discriminatory action, complainant was employed
as a City Carrier with the agency's West Palm Beach, Florida facility.
On January 7, 2009, complainant alleges that upon making a request for
annual leave, she was notified by management that she had to resubmit
her request after the "Annual Prime Time" leave sign up was completed.
Complainant alleges that she resubmitted her leave request on January
15, 2009; however, on January 16, 2009, management denied her request
on the grounds that the maximum annual leave percentages had already
been met. On January 30, 2009, complainant further contends that her
supervisor intentionally gave her the wrong Delivery Point Sequence (DPS)
count, a figure which can help mail carriers determine the correct amount
of street time on a specific route.
According to the record, complainant's initial EEO contact occurred on
March 4, 2009. In her complaint, filed on April 14, 2009, complainant
alleged that she was subjected to discrimination in reprisal for prior
protected EEO activity under Title VII when: (1) on January 7, and 15,
2009, she was denied Annual Leave; and (2) on January 30 and 31, 2009,
she was given the wrong Delivery Point Sequence (DPS) mail count.
In its final decision, the agency found that complainant requested
counseling approximately 48-51 days after the alleged discriminatory
action occurred. On these grounds, The agency dismissed claim (1)
as untimely, pursuant to 29 C.F.R. � 1614.107(a)(2). The agency also
dismissed claim (2) for failure to state a claim, pursuant to 29 C.F.R. �
1614.107(a)(1), finding that complainant had not suffered a harm with
respect to a term, condition, or privilege of employment.
CONTENTIONS ON APPEAL
On appeal, complainant reiterates the arguments made in her formal
complaint. In its appeal brief, the agency reiterates the arguments
made in its final agency decision.
FINDINGS AND ANALYSIS
Claim (1)
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
With respect to claim (1), we agree with the agency's finding that
complainant did not initiate contact with an EEO counselor within the
45 day period stipulated by 29 C.F.R. 1614.107(a)(2). The record shows
that management's denial was dated January 16, 2009. Nonetheless,
complainant's initial EEO contact on March 4, 2009, occurred 47 days
after the alleged discriminatory incident and was therefore untimely.
EEOC regulations provide that the agency or the Commission shall
extend the time limits when the individual shows that she was not
notified of the time limits and was not otherwise aware of them,
that she did not know and reasonably should not have known that the
discriminatory matter or personnel action occurred, that despite due
diligence she was prevented by circumstances beyond her control from
contacting the Counselor within the time limits, or for other reasons
considered sufficient by the agency or the Commission. See 29 C.F.R.
� 1614.105(a)(2). In the instant case, however, complainant has
offered no argument or basis to explain why an extension is warranted.
The record indicates that complainant had engaged in previous EEO
activity. Further, the record indicates that EEO Posters were prominently
displayed at complainant's work location. The posters expressly noted
that individuals have 45 days to contact a counselor. Therefore, we
find that since complainant was familiar with the EEO complaint process
and was on notice of the timeliness requirements, she should have been
aware of the 45 day requirement to contact a counselor. On these bases,
we find that an extension is not warranted.
Claim (2)
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,
106(a). The Commission's federal sector case precedent has long defined
an "aggrieved employee" as one who suffers a present harm or loss with
respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
Notwithstanding the above, we find that the agency erred by addressing
whether claim (2) affected a term or condition of complainant's
employment. Complainant's allegation of discrimination is based
on reprisal. The anti-retaliation provisions of the employment
discrimination statutes seek to prevent an employer from interfering
with an employee's efforts to secure or advance enforcement of the
statutes' basic guarantees, and are not limited to actions affecting
employment terms and conditions. Burlington Northern & Santa Fe
Railroad. Co. v. White, 548 U.S. 53 (2006). To state a viable claim of
retaliation, complainant must allege that: (1) she was subjected to an
action which a reasonable employee would have found materially adverse,
and (2) the action could dissuade a reasonable employee from making or
supporting a charge of discrimination. Id. While trivial harms would
not satisfy the initial prong of this inquiry, the significance of
the act of alleged retaliation will often depend upon the particular
circumstances. See also EEOC Compliance Manual, No. 915.003 (May 20, 1998)
(any adverse treatment that is based upon a retaliatory motive and is
reasonably likely to deter the charging party or others from engaging
in protected activity states a claim).
In applying the foregoing standard to claim (2), we find that complainant
has established that the agency's alleged action of giving her an
incorrect DPS mail count because of her prior EEO activity: (i) was
materially adverse; and (ii) could dissuade a reasonable employee from
making or supporting a charge of discrimination.
CONCLUSION
After a careful review of the record and contentions on appeal, including
those not specifically addressed herein, the Commission AFFIRMS the
agency's dismissal of claim (1); however, with respect to claim (2),
we find that complainant stated a claim of reprisal discrimination.
Accordingly, we REVERSE and REMAND the agency's dismissal of claim (2).
ORDER (E0408)
The agency is ordered to process the remanded claim in accordance with
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 (K1208)
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 (M1208)
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 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 (T0408)
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 (Z1008)
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
______12/18/09____________
Date
2
0120092663
6
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120092663