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