01972083
09-02-1999
Elizabeth A. Wilson, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service (Headquarters), Agency.
Elizabeth A. Wilson, )
Appellant, )
) Appeal No. 01972083
v. ) Agency No. H0-0230-96
)
William J. Henderson, )
Postmaster General, )
United States Postal Service )
(Headquarters), )
Agency. )
)
DECISION
INTRODUCTION
Appellant timely initiated an appeal of a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
bases of race (Black), sex (female), reprisal (prior EEO activity),
and age (date of birth: 10/7/53), in violation of Title VII of the Civil
Rights Act of 1964, 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. Appellant alleges that she was discriminated against when the
job for which she was selected was assigned a discriminatorily low grade
level. The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's decision is REVERSED and REMANDED.
BACKGROUND
The record reveals that during the relevant time period, appellant
was employed as a Secretary, EAS-11, at the agency's headquarters in
Washington, D.C. Appellant was assigned that position in September
1995. According to appellant on July 10, 1996, she learned that upon her
assignment to that position it had been reclassified to the EAS-11 level.
The immediately preceding incumbent, a white female, had occupied the
position at the EAS-14 level.
Believing herself to be a victim of discrimination, appellant sought
EEO counseling on August 5, 1996 and, subsequently, filed a complaint
on September 8, 1996. In its final decision, the agency dismissed the
complaint, pursuant to 29 C.F.R. � 1614.107(b), for untimely counselor
contact and, pursuant to 29 C.F.R. � 1614.107(a), for failure to state
a claim.
From the FAD, appellant brings the instant appeal.
ANALYSIS AND FINDINGS
Untimely Counselor Contact
We find that the agency erred in dismissing the complaint on grounds of
untimeliness. EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that
complaints of discrimination be brought to the attention of the Equal
Employment Opportunity 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 Commission has adopted
a "reasonable suspicion" standard (as opposed to a "supportive facts"
standard) to determine when the 45-day limitation period is triggered.
See Ball v. USPS, EEOC Request No. 05880247 (July 6, 1988). 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.
Here, the complaint, as clarified in the EEO Counselor's Inquiry Report
dated September 10, 1996, alleges that appellant first became aware
that her position had been downgraded when, on July 10, 1996, she was
so informed by an unnamed employee of the agency. Appellant initiated
contact with the EEO counselor on August 5, 1996. Thus, taking the
allegations of complaint as true, counselor contact was initiated within
45 days of the time when appellant first had reason to suspect she had
been discriminated against.
The FAD's conclusion that appellant's counselor contact was untimely
is based principally on appellant's failure to identify the person who
informed her about the downgrading of her position. According to the FAD,
without knowing the identity of that person, the agency was unable to
assess the �credibility� of appellant's allegations regarding timeliness.
Therefore, the agency declined to accept the truth of appellant's
allegations and dismissed the complaint on timeliness grounds.
It appears to us that the agency has acted prematurely in addressing
the merits of the complaint without having first conducted a factual
investigation. There is no occasion at this junction for the agency
to make any assessment of the credibility of appellant's allegations.
The truth or falsity of appellant's allegations goes to the merits
of the complaint and is irrelevant to the procedural issue of whether
her allegations were timely raised. See Osborne v. Department of the
Treasury, EEOC Request No. 05960111 (July 19, 1996); Lee v. United
States Postal Service, EEOC Request No. 05930220 (August 12, 1993);
Ferrazzoli v., EEOC Request No. 05910642 (August 15, 1991).
Failure to State a Claim
The FAD dismissed the complaint for failure to state a claim, reasoning
that appellant's failure �to name the employees who were allegedly treated
differently than herself . . . leaves complainant in a non aggrieved
[sic] status.� We find that in so doing the agency committed error.
The agency incorrectly concluded that appellant was �non-aggrieved.� For
purposes of dismissal pursuant to 29 C.F.R. � 1614.107(a), an aggrieved
employee is 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). Here, appellant alleges that her position was downgraded
from EAS-14 to EAS-11. It is self-evident that such a downgrading,
with its attendant reduction in compensation, worked a �present harm or
loss� affecting a term of appellant's employment. That harm could be
remedied by an award of backpay. Thus, appellant was aggrieved by the
alleged downgrading.
The remaining question is whether appellant has adequately alleged
discrimination. As is set forth above, she has alleged that she was
discriminated against on the basis of race, sex, reprisal and age.
This is adequate to bring the claim within the purview of the EEO laws.
The agency is mistaken in its view that, at the pleading stage, a
complainant must set forth evidentiary detail, such as the identity of
those who may have benefitted from the alleged discrimination, in order
to avoid dismissal.
CONCLUSION
Therefore, after a careful review of the record, including appellant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we REVERSE and REMAND the
allegations to the agency for processing in accordance with this decision
and the ORDER below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegation in accordance
with 29 C.F.R. � 1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegation within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (K0595)
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 appellant.
If the agency does not comply with the Commission's order, the appellant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The appellant 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. ��1614.408,
1614.409, and 1614.503(g). Alternatively, the appellant 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. ��
1614.408 and 1614.409. 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) (Supp. V 1993). If the appellant files a civil
action, the administrative processing of the complaint, including any
petition for enforcement, will be terminated. See 29 C.F.R. � 1614.10.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision 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 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. It is the position of the Commission that
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. You should be aware, however, that
courts in some jurisdictions have interpreted the Civil Rights Act of
1991 in a manner suggesting that a civil action must be filed WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision.
To ensure that your civil action is considered timely, you are advised to
file it WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive
this decision or to consult an attorney concerning the applicable time
period in the jurisdiction in which your action would be filed. 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. 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 (Z1092)
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:
September 2, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations