0120083480
12-04-2008
Donna M. Blain, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Donna M. Blain,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120083480
Agency No. 4B028002708
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated July 7, 2008, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. Upon review, the Commission
finds that a portion of complainant's complaint was improperly dismissed
pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
Complainant alleged discrimination on the basis of mental disability and
reprisal for prior protected EEO activity under Title VII of the Civil
Rights Act of 1964 when (1) on February 4, 2008, her request for leave
was categorized as "non FMLA" instead of "FMLA" pending documentation;
(2) on February 6, 2008, she was told to report to another manager during
her detail; (3) on February 8, 2008, it was alleged that she did not
complete 5 routes; (4) on February 21, 2008, she was questioned by a
postal inspector; (5) and when she was placed on paid administrative
leave from March 3 - 13, 2008.
The agency dismissed claims 1 and 2 for untimely EEO counselor contact
and the remaining claims for failure to state a claim. The record
indicates complainant's initial EEO counselor contact was on March
24, 2008. 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. Claims 1 and 2 were first raised with the EEO counselor
beyond this 45-day limitation period and complainant has not provided
adequate justification for waiving the limitation period. Accordingly,
the agency's dismissal of claims 1 and 2 is affirmed.
The Commission also agrees with the agency that claims 3 and 5 do not
state a claim. Complainant has not alleged sufficient facts to support
an allegation that she incurred an injury or harm to a term, condition,
or privilege of employment for which there is a remedy regarding
these claims. See Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
With regard to claim 4, the Commission has stated that adverse actions
need not qualify as "ultimate employment actions" or materially affect
the terms and conditions of employment to constitute retaliation. Lindsey
v. United States Postal Service, EEOC Request No. 05980410 (Nov. 4, 1999)
(citing EEOC Compliance Manual, No. 915.003 (May 20, 1998)). Instead,
the statutory retaliation clauses prohibit 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. Id.
The Commission notes that on the "information for pre-complaint
counseling" form complainant stated that "a postal inspector was sent
to my home at night to search and interrogate me regarding deposition
testimony in my EEO case." We find that the agency's actions, if proven
true, could have a chilling effect on EEO participation. As such, claim
4 states a claim of reprisal.
Accordingly, the agency's final decision dismissing complainant's
complaint is affirmed in part and reversed in part. Claim 4 is hereby
remanded to the agency for further processing in accordance with this
decision and the Order below.
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 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 (K0408)
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 (M0408)
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 (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
December 4, 2008
__________________
Date
2
0120083480
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120083480