Yolanda Willis, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 28, 2007
0120070741 (E.E.O.C. Feb. 28, 2007)

0120070741

02-28-2007

Yolanda Willis, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Yolanda Willis,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120070741

Agency No. 1J-607-0051-06

DECISION

Complainant filed a timely appeal with this Commission from the final

agency decision dated November 3, 2006, dismissing her formal 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.

On August 29, 2006, complainant initiated EEO Counselor contact. In her

formal complaint, filed on October 20, 2006, complainant alleged that

she was subjected to discrimination on the basis of sex.

In its final decision, dated November 3, 2006, the agency determined

that complainant's complaint was comprised of the following claim:

In August 2006, [complainant] became aware that male employees were not

removed for the same offense as her removal dated September 17, 2005.

The agency dismissed complainant's complaint on the grounds of untimely

EEO Counselor contact. The agency stated that complainant did not contact

an EEO Counselor until August 29, 2006, which was beyond the applicable

time period for the alleged discriminatory action that occurred on

September 17, 2005. In addition, the agency stated that "[c]omplainant

becoming aware that other employees were not removed for the same offense,

...does not give rise to a new claim." In support of this proposition,

the agency cited to Daniels v. United States Postal Service, EEOC Appeal

No. 01920439 (January 23, 1992).

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.

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.

The agency improperly dismissed complainant's complaint on the grounds

of untimely EEO Counselor contact. The record contains a copy of

complainant's formal complaint. Therein, complainant stated that she

received a letter of removal in September 2005, and was actually removed

in October 2005. In addition, complainant stated that in August 2006,

she received a telephone call from an employee whom provided her names of

"male drivers that had worked other jobs and used sick leave and w[ere]

never removed..." Complainant further asserts that she "knew no names

or information about discrimination taking place" until she received

the telephone call.

The record also contains a copy of the EEO Dispute Resolution Specialist's

Inquiry Report. Therein, the EEO Dispute Resolution Specialist provided

that "[d]uring all interviews, counselee maintained that she did not know

that other male employees had been found to also be working a second job

and were not terminated until August 2006." The report further provided

that "[c]ounselee maintained she had no reason to suspect discrimination

at the time of her removal."

In the instant matter, the Commission finds that complainant reasonably

suspected discrimination in August 2006, when she allegedly received a

telephone call from an employee who stated that male employees engaged

in similar activities and were not removed from the agency. Thus,

we find that complainant's initial EEO Counselor contact on August 29,

2006 was timely.1

The Commission further notes that the agency's reliance on the Daniels

case in its final decision is misplaced. The Daniels case involved an

agency dismissal on the grounds that the complainant raised the same

claim as in a prior complaint and did not involve a dismissal on the

grounds of untimely EEO Counselor contact.

Accordingly, we REVERSE the agency's final decision dismissing

complainant's complaint and we REMAND this matter to the agency for

further processing in accordance with the ORDER below.

ORDER (E0900)

The agency is ordered to process the remanded claims in accordance with

29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant

that it has received the remanded claims 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 (K0501)

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 19848,

Washington, D.C. 20036. 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 (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 (R0900)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court within ninety (90) calendar days from the date

that you receive this decision. 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 filed your appeal with the

Commission. 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. 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

February 28, 2007

Date

1 The Commission further notes that the record contains a Notification

of Personnel Action form for complainant. Therein, the effective date

of complainant's removal is listed as August 21, 2006.

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0120070741

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120070741