01a03288
07-19-2000
Vivian R. Johnson Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Vivian R. Johnson v. United States Postal Service
01A03288
07-19-00
.
Vivian R. Johnson
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A03288
Agency No. 1K-221-0003-00
DECISION
On March 24, 2000, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) dismissing her complaint.<1>
The appeal is accepted by the Commission in accordance with 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
The record reflects that complainant requested pre-complaint processing
on August 5, 1999. On December 22, 1999, she filed a formal complaint
against the agency. Specifically, she alleged that she was discriminated
against because of her race (Black), color (unspecified), and sex
(female) when: (1) on an unspecified date in December 1998 and an
unspecified date prior to December 1998, her supervisor, A-1, warned
her not to date within the agency; (2) on unspecified date(s), A-1
started passing false information regarding her, was rude to her, and,
in March 1999, stopped speaking to her; and (3) on September 25, 1999,
A-1 tried to destroy her reputation when, after directing her to work on
September 26, 1999, A-1 wrote a note stating that complainant was angry
about having to work on September 26th and indicated that if complainant
called in sick on that date, she would need medical documentation.
The agency dismissed all three claims on the grounds that complainant
failed to state a claim. Furthermore, claims (1) and (2) were also
dismissed on the grounds that complainant sought EEO counseling in an
untimely manner. This appeal followed.
Claims (1) and (2)
64 Fed. Reg. 37,644, 37,656 (1999) (to be codified as 29 C.F.R. �
1614.107(a)(2)) provides, in pertinent part, that the agency shall dismiss
a complaint or a portion of a complaint that fails to comply with the
applicable time limits contained in � 1614.105. 64 Fed. Reg. 37,644,
37,656 (1999) (to be codified and hereinafter cited as 29 C.F.R. �
1614.105(a)(1)) requires that complaints of discrimination should be
brought to the attention of an 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 period is
not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent. Finally, our regulations provide that the agency or
the Commission shall extend the time period when the individual shows
that he was not notified of the time limits and was not otherwise aware
of them, that he did not know and reasonably should not have known that
the discriminatory matter or personnel action occurred, that despite
due diligence he was prevented by circumstances beyond his control from
contacting the counselor within the time limits, or for other reasons
considered sufficient by the agency or the Commission. 29 C.F.R. �
1614.105(a)(2).
We find that the agency properly dismissed claims (1) and (2) on the
grounds of untimely counselor contact. Complainant stated that she
was �[a]dvised to take all steps possible before filing [an] EEO.�<2>
According to complainant, she first contacted various management officials
about A-1's conduct and only sought EEO counseling when these efforts
failed. We have long held that internal appeals or informal efforts to
challenge an agency's adverse action does not toll the running of the
time limit to contact an EEO counselor. See Hosford v. Department of
Veterans Affairs, EEOC Request No. 05890038 (June 9, 1989). Accordingly,
complainant's attempt to resolve her concerns by contacting various
management officials is not sufficient to toll the 45-day time limit.
Therefore, we AFFIRM the agency's dismissal of claims (1) and (2).<3>
Claim (3)
The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999)(to be
codified and hereinafter cited as 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 he or 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).
The Commission finds that the agency properly dismissed claim (3) on
the grounds that it failed to state a claim. Complainant has failed
to show how A-1's note and alleged comments caused her to suffer a harm
or loss regarding a term, condition or privilege of her employment. In
addition, we find that her claims taken together are not sufficient to
establish a claim of discriminatory harassment. See Cobb v. Department
of the Treasury, EEOC Request No. 05970077 (March 13, 1997).<4>
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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, Acting Director
Office of Federal Operations
__07-19-00____________________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2Complainant provided no indication who advised her.
3Because of our decision above, we will not address whether claims (1)
and (2) state a claim.
4The Commission has repeatedly found that claims of a few isolated
incidents of alleged harassment usually are not sufficient to support
a harassment claim. See Phillips v. Department of Veterans Affairs,
EEOC Request No. 05960030 (July 12, 1996); Cobb, supra.