0120112106
07-13-2011
Iris J. Paul, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Iris J. Paul,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 0120112106
Agency No. 4C-152-0011-10
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
final decision dated February 8, 2011, dismissing a 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.
BACKGROUND
During the period at issue, Complainant was a Mail Handler at the
Agency’s Pittsburgh NDC Post Office in Warrendale, Pennsylvania.
On June 29, 2010, Complainant initiated EEO Counselor contact.
Informal efforts to resolve her concerns were unsuccessful.
On August 4, 2010, Complainant filed the instant formal complaint.
Therein, Complainant claimed that she was the victim of unlawful
employment discrimination on the basis of race (African-American) when:
on March 22, 2010, she was issued a Notice of Removal for Unsatisfactory
Attendance, effective April 30, 2010.
In its February 8, 2011 final decision, the Agency dismissed the instant
formal complaint on the grounds of untimely EEO Counselor contact,
pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency determined that
Complainant’s initial EEO Counselor contact occurred on June 29, 2010,
which it found to be beyond the 45-day limitation period. Specifically,
the Agency determined that Complainant had reasonable suspicion of
discrimination during the above referenced March 22, 2010 Notice of
Removal which is beyond the forty-five (45) day limitation period.
Finally, the Agency stated that EEO posters outlining the requisite
45-day limitation period were on display in Complainant’s workplace.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that her June 29, 2010 EEO contact
was timely. Specifically, Complainant argues that she did not file an
EEO complaint on her removal from Agency employment for Unsatisfactory
Attendance. Instead, Complainant states “based on the information
received in June [2010] about other employees who [were] disciplined and
[were] given a last change agreement and brought back. At that time I
felt that I was discriminated against based on my race. In June [2010]
I was given names of people who [were] white that were given a last
chance and brought back.”
ANALYSIS AND FINDINGS
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 personnel action,
within forty-five (45) days of the effective date of the action.
The record contains a copy of Complainant’s formal complaint in which
Complainant stated that she “was not given the same opportunity as
my white coworkers, [named employee], [named employee] and others.”
As a remedy, Complainant requested “reinstatement of my job willing
to sign last chance as others were given.” We also note that in her
report, the EEO Counselor stated that on June 21, 2010, Complainant
became aware “that other mail handlers with absentee issues were
reinstated with the Postal Service with a Last Chance Agreement while
she was not provided with the same.” We find that it was not until
June 21, 2010 when Complainant became aware that other employees with
unsatisfactory attendance were given a last chance and brought back
to work. Therefore, we find that Complainant’s June 29, 2010 EEO
Counselor contact was timely.
Accordingly, we REVERSE the Agency’s dismissal of the instant complaint
on the grounds of untimely EEO Counselor contact, and we REMAND this
matter to the Agency for further processing in accordance with the
ORDER below.
ORDER (E0610)
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 (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
July 13, 2011
__________________
Date
2
***Appeal number TX***
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112106
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