0120090220
02-11-2009
Mai-Chi L. To, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Mai-Chi L. To,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090220
Agency No. 4E-800-0206-08
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final decision dated September 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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.
On June 9, 2008, complainant initiated EEO Counselor contact. Informal
efforts to resolve her concerns were unsuccessful.
On September 10, 2008, complainant filed the instant formal complaint.
Therein, complainant alleged that she was subjected to discrimination
on the bases of race, national origin, color, age, and in reprisal for
prior EEO activity when:
1. on May 6, 2008, she became aware her score on the clerk register was
no longer active and she had not been hired in a career position;
2. on May 31, 2005, during a REDRESS mediation, she was told her name
would be placed back on the register; and
3. on July 29, 2008, during a REDRESS mediation, management tried to
pacify her by trying to locate a document rather than consider her for
a clerk position.
In its September 20, 2008 final decision, the agency dismissed claims 1 -
2 pursuant to 29 C.F.R. � 1614.107(a)(2) on the grounds of untimely EEO
Counselor contact. The agency determined that complainant's initial EEO
contact occurred on June 9, 2008, which it found to be beyond the 45-day
limitation period. The agency further determined that complainant
had or should have had reasonable suspicion of unlawful employment
discrimination prior to June 9, 2008. The agency determined that EEO
posters addressing the 45-day requisite time period were on display in
complainant's workplace during the time. Further, the agency determined
that complainant was aware of the time limitations because she had engaged
in prior protected activity. The agency also dismissed claims 1 - 2 on
alternative grounds of failure to state a claim pursuant to 29 C.F.R. �
1614.107(a)(1), finding that complainant was not aggrieved.
The agency dismissed claim 3 for failure to state a claim. Specifically,
the agency found that complainant failed to show she suffered a personal
loss or harm to a term, condition or privilege of her employment.
The agency determined that the comments made during the REDRESS mediation
failed to rise to the level of an adverse action.
The record contains a copy of a Secretary's affidavit dated March 27,
2007, indicating that EEO posters, including applicable time limits,
were posted during the relevant time. The record also contains a copy
of EEO Poster 72 outlining the 45-day limitation period for contacting
an EEO Counselor.
Claims 1 - 2
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.
Here, complainant did not contact an EEO Counselor until more than 45
days after the incident in question. The agency has indicated that EEO
posters are properly posted in the workplace. Specifically, we note in
her affidavit, the Secretary for the Plant Manager stated "Poster 72
December 2005 edition is displayed on employee bulletin boards at the
Denver General Mail Facility. Poster 72 has been continually posted,
the must recent date of February 22, 2006 and is currently on display.
This Poster advises employees of the time requirements for timely filing
an EEO counseling request and the telephone number to contact to request
EEO counseling."
We note that in regard to claim 1, complainant, on appeal, contends
that on March 19, 2008, she went to the Employment and Hiring "and
requested to have my name extended on the hiring list. [Identified agency
official] told me that my name was not on the list for the 473 Register."
The record also contains a copy of complainant's letter dated April 15,
2008 to Human Resources. Therein, complainant stated "on March 19th,
2008 I visited the Employment and Hiring department to request my name be
extended an additional year but when I got there I was told my name was
not on the 473 register." Regarding claim 2, we note that complainant
claimed that during the May 31, 2005 REDERESS mediation, she was told by
management that her name would be placed back on the register. We find
that the alleged discriminatory events occurred on March 19, 2008 and
May 31, 2005, but that complainant did not initiate contact with an EEO
Counselor until June 9, 2008, which was beyond the forty-five (45) day
limitation period. The Commission determines that complainant provides
no persuasive justification for the delay in initiating EEO Counselor
contact.
Because we affirm the agency's dismissal of claims 1 - 2 on the grounds
of untimely EEO Counselor contact, we find it unnecessary to address it
on alternative grounds (i.e. failure to state a claim).
Claim 3
EEOC regulations require the dismissal of complaints that fail to state
a claim. See 29 C.F.R. � 1614.107(a)(1), for failure to state a claim.
To state a claim, complainant must allege harm to a term, condition,
or privilege of employment on the basis of race, color, religion,
sex, national origin, age, disabling condition, or reprisal for prior
protected activity. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994). Hostile work environment harassment is
actionable if it sufficiently severe or pervasive to alter the conditions
of complainant's employment. See Harris v. Forklift Systems, Inc.,
510 U.S. 17, 21 (1993).
We find that the agency properly dismissed claim 3 for failure to
state a claim. Specifically, we find that complainant did not suffer
a personal loss or harm regarding a term, condition or privilege of
her employment. We note that complainant claimed that during the July
29, 2008, REDRESS mediation, management tried to pacify her by trying
to locate a document rather than consider her for a clerk position.
However, since the remarks were allegedly made during the mediation
wherein which the parties were trying to resolve the subject matter,
we find that such a claim regarding mediation fails to state a claim.
Moreover, the alleged agency actions were not of a type reasonably likely
to deter complaint or others from engaging in protected activity.
Accordingly, the agency's dismissal of the instant complaint is AFFIRMED.
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 (S0408)
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. 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 (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
February 11, 2009
__________________
Date
2
0120090220
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120090220
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