01990114
04-14-2000
Margaret B. Maldonado, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Margaret B. Maldonado v. United States Postal Service
01990114
April 14, 2000
Margaret B. Maldonado, )
Complainant, )
)
v. ) Appeal No. 01990114
) Agency No. 4G780008698
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful employment discrimination
on the bases of race (white), sex (female), national origin (Hispanic)
and in reprisal for prior protected activity in violation of Title VII
as amended. <1> The appeal is accepted pursuant to 64 Fed. Reg. 37,644,
37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
Upon review, the Commission finds that complainant's complaint was
improperly dismissed pursuant to 64 Fed. Reg. 37,644, 37,656 (1999)(to
be codified and hereinafter referred to as EEOC Regulation 29 C.F.R. �
1614.107(a)(2)), for untimely EEO contact. However, after a review of
the record in its entirety, including consideration of all statements
submitted on appeal, it is the decision of the Commission to AFFIRM the
agency's final decision because the preponderance of the evidence of
record does not establish that discrimination occurred.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a Manager, Post Office Operations at the agency's San
Antonio Customer Services District. Believing she was a victim of
discrimination and retaliation, complainant sought EEO counseling
and subsequently filed a formal complaint on January 26, 1998. At the
conclusion of the investigation, complainant was informed of her right to
request a hearing before an EEOC Administrative Judge or alternatively,
to receive a final decision by the agency. When complainant failed to
respond within the time period specified in 29 C.F.R. � 1614, the agency
issued a final decision.
ANALYSIS AND CONCLUSION
Complainant was not selected to attend a career-enhancing program called
the Succession Planning Program. On October 20, 1997 complainant reports
suspecting, for the first time, that she was not selected for the program
because of her protected class status. According to complainant, her
immediate supervisor (Manager, Post Office Operations) and second-line
supervisor (District Manager) are responsible for her non-selection.
The FAD dismisses complainant's claim as untimely. Since complainant
learned during the Summer of 1997 that she was not considered for the
program, but contacted an EEO counselor on December 3, 1997, the agency
concluded that her EEO counselor contact occurred long after the 45 days
required by EEOC regulations.
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. We take this opportunity to correct the agency, since
the complainant first reasonably suspected discrimination on October 20,
1997, we find that her counselor contact on December 3, 1997 was timely.
The FAD went on to find that complainant fails to make a prima facie case
of reprisal or discrimination. The complainant's claims of discrimination
and reprisal constitute claims of disparate treatment. To prevail in
a disparate treatment claim such as this, complainant must satisfy the
three-part evidentiary scheme fashioned by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Loeb v. Textron, 600 F.2d
1003 (1st Cir. 1979). Where, as here, the agency articulates legitimate
and nondiscriminatory reasons for its actions, we can dispense with the
prima facie inquiry and proceed to the ultimate stage of the analysis,
i.e., whether the complainant has proven by preponderant evidence that the
agency's explanation was a pretext for actions motivated by prohibited
discriminatory animus. St. Mary's Honor Center v. Hicks, 509 U.S. 502,
519 (1993); United States Postal Service Board of Governors v. Aikens,
460 U.S. 711, 713-17 (1983); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997).
The agency has established a legitimate nondiscriminatory reason
for failing to nominate complainant for the program, namely that
RMO1 and RMO2 did not have the authority to nominate employees for the
Succession Planning Program. The complainant does not rebut the agency's
articulation and thereby fails to prove by preponderant evidence that the
agency's explanation was a pretext for actions motivated by prohibited
discriminatory animus.
Accordingly, the agency's final decision finding no discrimination
is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (S1199)
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 (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:
April 14, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.