01A60215
03-24-2006
Carmen D. Jimenez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Carmen D. Jimenez,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A60215
Agency No. 4F-940-0133-04
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 29, 2005, 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. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq.
Complainant, a Letter Carrier at the agency's Processing and Distribution
Center in San Francisco, California, contacted an EEO Counselor on August
9, 2004, regarding a claim of harassment. In her complaint, complainant
alleged that she was subjected to a hostile work environment on the bases
of national origin (Hispanic), sex (female), age (D.O.B. 12/14/41), and
reprisal for prior protected EEO activity. In support of her claim of
harassment, she claimed that she was docked pay, marked absent without
leave on two occasions, denied a request for a temporary change in
schedule, and her route was abolished while she was absent for EEO
representation activities.
The agency initially dismissed the matter for failure to state a claim.
Complainant appealed the matter to the Commission. The Commission reversed
the agency's dismissal and remanded the complaint for processing pursuant
to 29 C.F.R. Part 1614. Jimenez v. United States Postal Serv., EEOC Appeal
No. 01A51883 (April 12, 2005). The agency accepted the complaint for
investigation. Upon receipt of complainant's responses to the
investigator's list of questions, the agency determined that complainant
failed to contact the EEO Counselor in a timely manner. In particular, the
agency stated that none of the events listed in complainant's affidavit
were within forty-five calendar days of her contact with the EEO Counselor.
As such, the agency dismissed the complaint pursuant to 29 C.F.R. �
1614.107(a)(2). It is also noted that the agency stated that complainant
failed to file her formal complaint within fifteen calendar days of receipt
of her notice of right to file. The agency did not provide any further
information on this basis of dismissal.
This appeal followed.
The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in pertinent
part, that an agency shall dismiss a complaint which fails to comply with
the applicable time limits contained in 29 C.F.R. � 1614.106, which, in
turn, requires the filing of a formal complaint within fifteen (15) days of
receiving notice of the right to do so. Upon review of the record, we find
that complainant received the Notice of Right to File on October 5, 2004,
based on a copy of the signed return receipt form. Complainant filed her
complaint on October 20, 2004. This is fifteen days from the date
complainant received notice. Therefore, we find that complainant's formal
complaint was signed in a timely manner. As such, we reverse the agency's
dismissal on that ground.
EEOC Regulation 29 C.F.R. �1614.107(b) states 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, �1614.106 and �1614.204(c),
unless the agency extends the time limits in accordance with �1614.604(c).
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved person
must initiate contact with an EEO Counselor within 45 days of the date of
the matter alleged to be discriminatory or, in the case of a personnel
action, within 45 days of the effective date of the action. The Supreme
Court has held that a complainant alleging a hostile work environment will
not be time barred if all acts constituting the claim are part of the same
unlawful practice and at least one act falls within the filing period. See
National Railroad Passenger Corp. v. Morgan, 122 S.Ct. 2061 (June 10,
2002). The Court further held, however, that "discrete discriminatory acts
are not actionable if time barred, even when they are related to acts
alleged in timely filed charges." Id. Finally, the Court held that such
untimely discrete acts may be used as background evidence in support of a
timely claim. Id.
Upon review of the record, complainant clearly contacted the EEO Counselor
on August 9, 2004. In her pre-complaint form, complainant indicated that
on July 14, 2004, she was questioned about how long her route would take.
Complainant indicated in her attachments that this was the most recent
event in a pattern of actions by management to create a hostile work
environment. Complainant contacted the EEO Counselor within forty-five
calendar days of the July 14th incident. Therefore, we find that
complainant's contact regarding her claim of harassment was timely. We
note that the agency relied on complainant's "affidavit" to support its
dismissal of the complaint. A review of the investigator's list of
questions reveals that complainant was never asked about any incident on
July 14, 2004, or of any questioning of her route time by management. As
such, this incident has not been investigated and the agency could not rely
on the "affidavit" alone in dismissing this matter. Therefore, we find
that the agency's dismissal of the complaint pursuant to 29 C.F.R. �
1614.107(a)(2) was inappropriate.
Accordingly, we reverse the agency's dismissal and remand the matter for
further processing as ordered 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
March 24, 2006
__________________
Date