Julian J. Spires, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 27, 2009
0520090228 (E.E.O.C. Feb. 27, 2009)

0520090228

02-27-2009

Julian J. Spires, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Julian J. Spires,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Request No. 0520090228

Appeal No. 0120082817

Agency No. 4E970000208

GRANT

The United States Postal Service (agency) timely requested reconsideration

of the decision in Julian J. Spires v. United States Postal Service, EEOC

Appeal No. 0120082817 (December 2, 2008). EEOC regulations provide that

the Commission may, in its discretion, grant a request to reconsider any

previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b). After a thorough review of the

record, it is the decision of the Commission to grant the agency's request

in order to clarify our prior decision and the Order contained therein.

At the time of the events at issue, complainant was employed as a

Supervisor of Customer Service at a post office located in Oregon. In a

formal EEO complaint filed on November 27, 2007, complainant alleged that

he was intentionally discriminated against on the basis of his age (63).

Specifically, complainant alleged:

1. On April 14, 2007, he received official notification that he was not

selected for the Troutdale, Oregon Postmaster position.

2. Since on or around April 15, 2007, the Manager of Post Office

Operations and the Portland District Manager have not responded to a

letter sent from complainant requesting information about why he had

not been selected for the Postmaster position.

3. In June 2007, complainant was not introduced to the new Postmaster

(the position he was not selected for).

4. In July 2007, complainant was confronted negatively regarding recording

of mail, with implications that he was falsely inflating the volume.

5. On October 5, 2007, complainant was threatened with discipline if

his carriers had failures on Express deliveries.

6. On October 5 and 9, 2007, complainant was instructed to violate proper

disciplinary procedures.

7. Complainant's expertise and ability were questioned on a daily basis.

On December 24, 2007, the agency issued an acceptance/partial dismissal

letter to complainant. In that letter, the agency dismissed complainant's

April 2007 non-selection as untimely raised with an EEO counselor.

The agency noted that complainant was officially notified of his

non-selection in April 2007, but did not request EEO counseling until

October 5, 2007, beyond the regulatory 45-day time limitation. The agency

accepted for investigation a hostile work environment claim consisting

of the six enumerated events (allegations 2 - 7) that occurred between

April and October 2007.

The investigation into the hostile work environment claim, as defined by

the agency, was completed in March 2008, and complainant subsequently

requested a final agency decision on the merits of his claim. On May

13, 2008, the agency issued its final decision, analyzing complainant's

hostile work environment claim and concluding no discrimination had

occurred. In its final decision, the agency also incorporated by

reference its December 2007 dismissal of the non-selection claim for

untimely EEO counselor contact.

In EEOC Appeal No. 0120082817, the Commission remanded the complaint

back to the agency for further processing. The agency, in its request

for reconsideration, contends that this was in error because the agency

had already investigated complainant's hostile work environment claim

and issued a decision on the merits finding no discrimination. In light

of these concerns, the Commission will now seek to clarify its previous

decision and remand order.

The Commission notes that in its May 13, 2008 final decision, the

agency reaffirmed its earlier dismissal of complainant's April 2007

non-selection claim for the Troutdale Postmaster position for untimely

EEO counselor contact. Based on a thorough review of the record,

we conclude that this dismissal should be reversed.

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. However,

the Commission has adopted a "reasonable suspicion" standard (as opposed

to a "supportive facts" standard) to determine when the forty-five (45)

day limitation period is triggered. See Howard v. Department of the Navy,

EEOC Request No. 05970852 (February 11, 1999). 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.

In this case, it is undisputed that complainant received official

notification of his non-selection on April 14, 2007, and did not initiate

EEO counselor contact until October 5, 2007, more than 45 days later.

However, the Commission finds that the record does not establish that

complainant developed reasonable suspicion of discrimination at the

time of his non-selection notification. The notification letter, dated

April 13, 2007, does not reveal the identity of the selectee. The record

also contains a copy of an April 15, 2007 letter by complainant to the

selecting official asking about the selectee and requesting an explanation

of how this individual was more qualified than complainant. This was the

letter which is specifically mentioned in the complaint as never being

responded to. Complainant was working at another facility other than

Troutdale at the time of his non-selection. The record seems to indicate

that the selectee did not assume her new position until sometime in the

summer 2007, and complainant's belief that he was the better qualified

candidate did not develop until sometime later. Under the facts of this

case, we find that the record indicates that it is more likely than not

that complainant did not develop reasonable suspicion of discrimination

until significantly after his official notification of his non-selection.

Therefore, we are exercising our authority under 29 C.F.R. � 1614.604(c)

to deem his October 5 counselor contact as timely made and are reversing

the agency's dismissal of that claim.

As already noted, the agency did investigate complainant's hostile work

environment claim and issued a final decision on the merits of that claim.

To the extent that our prior decision could be interpreted to suggest that

the agency needs to reinvestigate allegations (2) - (7) of the complaint,

we now clarify that this was not our intention. However, we conclude

that the hostile work environment claim (allegations (2) - (7)) and the

non-selection claim were raised in the same complaint and are factually

tied to each other as they involved incidents which occurred during the

same time frame and involved the same management officials. Therefore,

they should not be processed separately. EEOC's Management Directive

(MD)-110 cautions against fragmenting EEO complaints. See MD-110,

Ch. 5, III. Therefore, we are vacating the agency's final decision on

the merits of allegations (2) - (7), and are ordering the agency to issue

a new decision on the merits of the entire complaint once it supplements

its earlier investigation with information about the non-selection.

Accordingly, the agency's May 13, 2008 final decision in this case is

hereby vacated, and the complaint, including the non-selection issue,

is remanded for further processing pursuant to the following Order.

There is no further right of administrative appeal on the decision of

the Commission on this request.

ORDER

The agency shall process the remanded non-selection issue in accordance

with 29 C.F.R. � 1614.108, as a supplemental investigation to the

one already conducted on the other allegations in this complaint.

The agency shall acknowledge to the complainant that it has received the

remanded claim within thirty (30) calendar days of the date this decision

becomes final. The agency shall complete the supplemental investigation

within one hundred fifty (150) calendar days of the date this decision

becomes final. The agency shall reissue a final decision on the merits of

complainant's entire complaint, including the non-selection issue, within

sixty (60) days of its completion of the supplemental investigation.

A copy of the agency's letter of acknowledgment to complainant and a copy

of the final agency decision following the supplemental investigation

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.

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0408)

This decision of the Commission is final, and there is no further right

of administrative appeal from the Commission's decision. 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. 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.

RIGHT TO REQUEST COUNSEL (Z0408)

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

February 27, 2009

__________________

Date

5

0520080809

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

5

0520090228