0120091093
03-31-2009
Laraine K. Pruett, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Laraine K. Pruett,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091093
Agency No. 4E800026408
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 20, 2008, 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
In her complaint, complainant alleged that she was subjected to
discrimination on the bases of race (Asian/Japanese), sex (female), color
(yellow), disability (diabetes, arthritis), age (52), and reprisal for
prior protected EEO activity under Title VII of the Civil Rights Act
of 1964 when she was placed on administrative leave with pay on May 1,
2008, and when she received a notice of proposed removal on November 6,
2008. In its final decision, the agency dismissed the claim concerning
administrative leave pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely
EEO Counselor contact. The agency dismissed the claim concerning the
notice of proposed removal pursuant to 29 C.F.R. � 1614.107(a)(5), as
a preliminary step to taking a personnel action. The instant appeal
followed.
With respect to being placed on administrative leave, 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 record in this case
discloses that the alleged discriminatory event occurred on May 1, 2008,
but complainant did not initiate contact with an EEO Counselor until
September 5, 2008, which is beyond the forty-five (45) day limitation
period. On appeal, complainant has presented no persuasive arguments
or evidence warranting an extension of the time limit for initiating
EEO Counselor contact.
Regarding the proposed removal, the regulation set forth at 29
C.F.R. � 1614.107(a)(5) provides, in part, that the agency shall
dismiss a complaint that alleges that a proposal to take a personnel
action, or other preliminary step to taking a personnel action,
is discriminatory. The record indicates that complainant has not
yet been removed. However, we note that complainant alleged unlawful
retaliation for prior EEO activity as one of the bases of her complaint.
The anti-retaliation provisions of the employment discrimination statutes
seek to prevent an employer from interfering with an employee's efforts
to secure or advance enforcement of the statutes' basic guarantees, and
are not limited to actions affecting employment terms and conditions.
Burlington Northern & Santa Fe Railroad. Co. v. White, 548 U. S. ____, 126
S. Ct. 2405 (2006). To state a viable claim of retaliation, complainant
must allege that: 1) s/he was subjected to an action which a reasonable
employee would have found materially adverse, and 2) the action could
dissuade a reasonable employee from making or supporting a charge of
discrimination. Id. While trivial harms would not satisfy the initial
prong of this inquiry, the significance of the act of alleged retaliation
will often depend upon the particular circumstances. See also EEOC
Compliance Manual, No. 915.003 (May 20, 1998) (any adverse treatment
that is based upon a retaliatory motive and is reasonably likely to
deter the charging party or others from engaging in protected activity
states a claim). In this case, we conclude that receipt of a notice of
proposed removal states a viable claim of reprisal. We also note that
on appeal complainant alleged that the agency used the proposed removal
to try to force complainant to accept a reassignment to a different
position without commensurate pay.
Accordingly, the agency's final decision dismissing complainant's claim
concerning being placed on administrative leave is affirmed, but her claim
concerning issuance of the proposed removal is reversed. The complaint
is remanded to the agency for further processing in accordance with the
following Order.
ORDER (E0408)
The agency is ordered to process the remanded claim (proposed removal)
in accordance with 29 C.F.R. � 1614.108 et seq. 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 (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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (R0408)
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 (Z1008)
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
March 31, 2009
__________________
Date
2
0120091093
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120091093