0120122760
04-07-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, Agency Appeal No. 0120122760 Agency No. 4K-300-0038-12
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
Agency
Appeal No. 0120122760
Agency No. 4K-300-0038-12
DECISION
On June 8, 2012, Complainant filed a timely appeal with this Commission from the Agency's decision dated May 8, 2012, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Sales Service Distribution Clerk at the Agency's Decatur Main Post Office in Decatur, Georgia.
On March 16, 2012, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination based on reprisal for prior protected equal employment opportunity (EEO) activity when:
On October 4, 2011 she learned from a co-worker that a file containing her medical documentation was left laying around on the floor for other employees to see and this medication documentation included her social security number, birthday, account number and her limitations.
The Agency dismissed the claim for failure to timely initiate EEO counseling.
The EEO Counselor's report indicates that Complainant initiated counseling on December 7, 2011. The Agency dismissed the complaint based on this contact date.
On appeal, Complainant alleges that she first initiated EEO contact by telephone on November 1, 2011, and after not receiving the EEO packet she initiated a second contact by telephone on December 7, 2011.
In a response to Complainant's appeal, the Agency submitted its EEO Contact Center log. The log lists December 7, 2011, as the date on which Complainant initiated contact.
ANALYSIS AND FINDINGS
An aggrieved person must seek EEO counseling within 45 days of the date of the alleged discriminatory action, or in the case of a personnel action, within 45 days of the effective date of the action. 29 C.F.R. � 1614.105(a)(1) & .107(a)(2).
The record discloses that the alleged discriminatory event occurred on October 4, 2011. Because there is a dispute about the initial contact date, we are unable to determine if Complainant initiated contact within the 45 day limitation period. For this reason the complaint is remanded to the Agency in accordance with the Order below.
CONCLUSION
The Agency's final decision dismissing Complainant's complaint is VACATED, and is remanded in accordance with the Order below.
ORDER
The agency is ordered to take the following remedial actions:
1. Acknowledge to Complainant that it has received the remanded claim within 30 calendar days after this decision becomes final;1
2. Supplement the record with information on whether Complainant contacted the EEO office within 45 calendar days after October 4, 2011. This must include information on the method by which telephone calls to its EEO Contact Center are logged and a description of any efforts the Agency made or makes to determine if Complainant called the EEO Contact Center within 45 calendar days of October 4, 2011, with a focus on November 1, 2011. This information must be in the form of additional documentation, if there is any, and an affidavit;
3. In supplementing the record, the Agency shall contact Complainant and give her an opportunity to contribute thereto.
After supplementing the record, as directed above, the Agency shall either accept Complainant's complaint, in whole or part, for investigation and process it in accordance with 29 C.F.R. Part 1614, or issue a new FAD, appealable to the EEOC, dismissing the entire complaint. The Agency shall issue a letter accepting the complaint or a FAD dismissing the entire complaint within 60 calendar days after this decision becomes final.
A copy of the agency's letter of acknowledgment to complainant and a copy of the letter accepting the complaint or FAD dismissing the entire complaint must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 (M0610)
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), at 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 (R0610)
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 (Z0610)
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
April 7. 2014
__________________
Date
1 If neither party files a request for reconsideration, this decision becomes final within 30 days after the parties receive this decision. The Commission presumes the parties will receive this decision within five days after it is mailed.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120122760
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122760