Margaret B. Maldonado, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 14, 2000
01990114 (E.E.O.C. Apr. 14, 2000)

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.