0120064373
12-14-2006
Kimberly F. Arnhold, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Kimberly F. Arnhold,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200643731
Agency No. 4G-770-0189-06
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 7, 2006, dismissing her 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. and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. � 791 et seq. In her complaint, complainant alleged
that she was subjected to discrimination on the bases of disability
(arm/shoulder/chest) and reprisal for prior protected EEO activity under
Title VII and the Rehabilitation Act of 1973 when:
(1) on February 7, 2006 and continuing, her job duties were changed in
that she lost collection and express mail duties;
(2) on February 7, 2006 and continuing, she has been requested to further
document Family Medical Leave Act (FMLA); and
(3) on March 23, 2006, she was scolded by an Officer in Charge for 20
to 30 minutes and her job assignments have become more difficult.
The agency dismissed claim (1) for failure to contact an EEO Counselor
within the 45-day time frame contained in 29 C.F.R. � 1614.105(a)(1).
The agency dismissed claims (2) and (3) for failure to state a claim
under 29 C.F.R. � 1614.107(a)(1), finding that complainant had not shown
how she had suffered a personal loss or harm with respect to a term,
condition or privilege of employment. Complainant appealed the dismissal,
arguing that she did not realize that the incident in claim (1) was
discriminatory until she had spoken with "someone knowledgeable about the
EEOC regulations." She also noted that she is claiming that the complaint
is "continuing" and that the agency unduly delayed her contact with an EEO
Counselor beyond the 45 day limitation period. As to claims (2) and (3),
complainant argued that the "denial of FMLA and constant recertification
for a permanent injury is just harassment" and that the scolding is an
"unreasonable work condition that others would not tolerate." She also
stated that her claim that her job assignments had become more difficult
should clearly indicate that she had been harmed by the agency's actions.
The agency urged the Commission to affirm the dismissal of the complaint.
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 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.
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.
The Commission finds that claim (1) was properly dismissed for untimely
EEO Counselor contact. Although complaint argued that the change
in her job duties is "continuing," a change of assignment would be a
discrete act that would trigger the running of the 45 day period to
contact an EEO Counselor. Complainant had previously filed complaints
with the agency and therefore can be presumed to have known about the
limitation period. We also note that although she claimed that the
agency delayed her contact with a counselor, the record reflects that the
agency counted the initial EEO contact as occurring on March 29, 2006.
Complainant's informal counseling forms were dated and returned on April
6, 2006, so presumably the date of March 29, 2006 was when complainant
contacted the EEO Counselor to obtain the forms and begin the counseling
process. Complainant does not provide any alternative date within the
45 day period, nor does she provide documentation of earlier attempts
to contact the EEO Counselor.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint 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, .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).
With respect to claims (2) and (3), the Commission finds that under the
Commission's broad view of reprisal, a complainant need not demonstrate
that he is "aggrieved" under the Diaz standard to state a legal claim,
but only that the alleged adverse treatment was based upon a retaliatory
motive and is reasonably likely to deter the charging party or others
from engaging in protected activity. See Lindsey v. United States
Postal Service, EEOC Request No. 05980410 (November. 4, 1999) (citing
EEOC Compliance Manual, No. 915.003 (May 20, 1998)). Because complainant
has alleged facts sufficient to demonstrate that she is aggrieved under
these standards, claims (2) and (3) state a claim under our regulations.
ORDER (E0900)
The agency is ordered to process the remanded claims (2) and (3) 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 (K0501)
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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (R0900)
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 (Z1199)
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
December 14, 2006
__________________
Date
1 Due to a new Commission data system, this case has been redesignated
with the above-referenced appeal number.
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012006373
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120064373