01986237
10-28-1999
Karen Wheatley, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Karen Wheatley v. United States Postal Service
01986237
October 28, 1999
Karen Wheatley, )
Appellant, )
)
v. ) Appeal No. 01986237
) Agency No. 4-D-250-0114-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On August 13, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD), dated July 15, 1998, pertaining to
her complaint of unlawful employment discrimination in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.
The Commission accepts appellant's appeal in accordance with EEOC Order
No. 960, as amended.
In her complaint, appellant alleged that she was subjected to
discrimination on the bases of sex (female) and/or in retaliation for
prior EEO activity when:
On May 30, 1995, the regular clerk stated that she is the boss in the
office and appellant will do what she says. The Postmaster has allowed
this to go on.
On October 6, 1997, the regular clerk told appellant that if she couldn't
work over off the clock while she (the regular clerk) was in a "POA"
status, then the regular clerk would work appellant every second - even
if it would involve appellant just sweeping the floor. Furthermore,
the Postmaster permitted this.
On February 25, 1998, the Postmaster stated that he would no longer
approve Monday through Wednesday or Saturday leave unless appellant
took a whole week.
On March 4, 1998, appellant informed the Postmaster that the regular
clerk threatened to put appellant's head through the wall, and the
Postmaster refused to do anything about it.
On April 13, 1998, after a financial audit was begun in the Alderson
Post office, the regular clerk told appellant this is what happens when
you run your mouth.
On April 25, 1998, appellant was told by the Postmaster that she was
off the Officer in Charge (OIC) assignment until further notice after
only four days as OIC.
On April 27, 1998, the regular clerk threatened to slap appellant,
then changed it to slap appellant with a law suit for slander regarding
allegations made concerning the regular clerk and the Postmaster sleeping
together.
On April 27, 1998, appellant was called into the office by the regular
clerk and told not to lock-up, any longer, the registers appellant
received from Post Offices' deposits; the regular clerk denied appellant
a break after working for two and a half hours; and appellant was told
to put-up two sets of box holders simultaneously.
From January 1997 to April 27, 1997, the regular clerk threw away
all correspondence sent to appellant including vacancies left by
the Postmaster. Furthermore, the Postmaster did nothing about it.
From January 1997 to April 27, 1997, the regular clerk said repeatedly
that the Postmaster would not allow appellant to go anywhere because
of the EEO she filed, and also because appellant works. Furthermore,
the Postmaster stated that he was not going to be a training ground
for the USPS.
On May 1, 1998, the Manager of Post Office Operations told appellant
that if she returned to work she could keep the OIC, but if she stayed
at home she would lose it. The manager then told appellant to accept
responsibility for the office, but appellant could not be there until
the other part-time flexible (PTF) returned to work at Alderson.
The agency accepted allegations 6, 8, and 11 for investigation,
but dismissed allegations 1 through 4 pursuant to EEOC Regulation 29
C.F.R. �1614.107(b), for untimely EEO contact, and allegations 5, 7, 9,
and 10 pursuant to 29 C.F.R. �1614.107(a), for failure to state a claim.
Specifically, the agency noted that appellant did not contact an EEO
Counselor until May 20, 1998, which was more than 45 days from the
date of the incidents raised in allegations 1 through 4. Furthermore,
the agency noted that appellant's allegations do not qualify under the
continuing violation theory. With regard to allegations 5, 7, 9, and
10, the agency found that appellant failed to show that she was harmed
by any adverse agency action.
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.
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 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.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
Here, the record clearly shows that appellant's initial contact date
of May 20, 1998, for allegations 1 through 4, was beyond the 45-day
limitation. Appellant failed to present any justification/explanation to
warrant an extension of the applicable time limit. Thus, the agency's
dismissal of allegations 1 through 4 for untimeliness was proper.
EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that
an agency shall dismiss a complaint, or portion thereof, that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �1614.103;
�1614.106(a). The Commission's federal sector case precedent has long
defined an "aggrieved employee" as 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). Moreover, the Commission has
repeatedly found that remarks or comments unaccompanied by a concrete
agency action are not a direct and personal deprivation sufficient to
render an individual aggrieved for the purposes of Title VII. See Backo
v. U.S. Postal Service, EEOC Request No. 05960227 (June 10, 1996); Henry
v. U.S. Postal Service, EEOC Request No. 05940695 (February 9, 1995).
In allegations 5, 7, and 10, appellant disputes various remarks or
comments made to her by the regular clerk and by the Postmaster. The
Commission has consistently held that a remark or comment unaccompanied
by concrete action is not a direct and personal deprivation sufficient
to render an individual aggrieved for the purposes of Title VII. Henry
v. USPS, EEOC Request No. 05940695 (February 9, 1995). Consequently,
we find that the agency properly dismissed allegations 5, 7, and 10 for
failure to state a claim.
In allegation 9, appellant alleged that the regular clerk threw away
all correspondence sent to appellant including vacancy announcements.
Upon review, we find that allegation 9 does state a claim. Receipt of
correspondence, including vacancy announcements, could be a term,
condition, or privilege of appellant's employment. Clearly, the regular
clerk's actions in throwing the correspondence away was adverse in nature.
Since appellant alleged that the adverse action was due to her sex and
in retaliation for her prior EEO activity, appellant has stated a claim
within the purview of the EEO regulations. Therefore, the agency's
dismissal of allegation 9 for failure to state a claim was improper.
CONCLUSION
For the reasons stated above, the Commission AFFIRMS the agency's
dismissal of allegations 1 through 5, 7 and 10. The agency's dismissal
of allegation 9 is REVERSED and this allegation is REMANDED for further
processing in accordance with 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. �1614.410.
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 affirms the agency's final decision 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 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:
October 28, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations