Patricia A. Butler, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service (Pacific/western), Agency.

Equal Employment Opportunity CommissionNov 8, 1999
01996185 (E.E.O.C. Nov. 8, 1999)

01996185

11-08-1999

Patricia A. Butler, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service (Pacific/western), Agency.


Patricia A. Butler, )

Appellant, )

)

v. ) Appeal No. 01996185

) Agency No. 1F-924-0017-99

William J. Henderson, )

Postmaster General, )

United States Postal Service )

(Pacific/western), Agency. )

______________________________)

DECISION

On August 6, 1999, appellant filed a timely appeal with this Commission

from a final agency decision (FAD) received on July 29, 1999, pertaining

to a complaint of unlawful employment discrimination pursuant to Title

VII of the Civil Rights Act of 1964, 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. The Commission accepts appellant's

appeal in accordance with EEOC No. 960.001.

The record reflects, that on February 22,1999, appellant initiated

contact with an EEO Counselor. During the counseling period, appellant

alleged that she was subjected to a hostile work environment when: (1)

On December 22, 1998 she was subjected to an investigative interview;

(2) she was issued a proposed letter of warning on January 20, 1999;

(3) on February 25, 1999 she was involuntarily reassigned and (4) her

personal property was confiscated.

On June 29, 1999 appellant filed a formal complaint, alleging that she

was the victim of unlawful employment discrimination on the basis of

gender (female) and age (56). Appellant's complaint was comprised of

the matters for which she underwent EEO counseling, discussed above.

On July 27, 1999, the agency issued a final decision (FAD) dismissing

above allegations one and two. As per allegation one, the agency found

that appellant failed to initiate timely contact with an EEO Counselor

because, the alleged discriminatory action took place on December 22,

1999 and appellant initiated EEO contact on February 22, 1999. Therefore,

more than forty-five days after the matter purportedly occurred. Second,

the agency dismissed allegation two for to stating a claim that was

only a proposed action. The agency found that since the action was

only proposed, appellant was not aggrieved, thus, she fails to state

a claim. However, the agency did accept above allegations three and

four for investigation. It is from this decision that appellant appeals.

On appeal, through her representative, appellant argues three points.

First, appellant alleges that the allegations within her complaint are

interrelated incidents that have created a �hostile work environment�

and therefore they should be investigated because they are evidence

of the larger claim of harassment. Second, appellant argues that as

per allegation one supra., she initiated timely contact with an EEO

Counselor because she was not made aware of the discriminatory action

until she received the proposed letter of warning on January 20, 1999.

Third, appellant argues as per allegation two supra. the claim is not moot

because, the proposed letter of warning was placed in her personnel file.

Therefore, the subject matter can effect her in the future.

In the case at bar, the agency contends that allegation one is untimely.

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, when applying the �reasonable suspicion� standard, appellant had no

reason to believe that she was being discriminated against when she was

subjected to the investigative interview on December 22, 1998. However,

appellant did have a reasonable suspicion of discrimination on January

20, 1999 when she was issued the proposed letter of warning. Because said

letter was the product of the investigation. Therefore, since appellant

initiated contact with an EEO Counselor on February 22, 1999 allegation

one is considered timely since she initiated contact within forty-five

days from the time she reasonable suspected discrimination had occurred.

Accordingly, the agency's decision to dismiss allegation one for failure

to initiate timely contact with an EEO Counselor was improper and is

REVERSED. Appellant's complaint is REMANDED to the agency for further

processing in accordance with this decision and applicable regulations.

In the instant case, the agency also argues that allegation two is moot

and only alleges a proposal to take personnel action. EEOC Regulation

29 C.F.R. �1614.107(e) provides, in part, that the agency shall dismiss

a complaint or a portion of a complaint that alleges that a proposal to

take a personnel action, or other preliminary step to taking a personnel

action, is discriminatory. This provision requires the dismissal of

complaints that allege

discrimination "in any preliminary steps that do not, without further

action, affect the person: for example, progress reviews or

improvement periods that are not a part of any official file on the

employee." 57 Fed. Reg. 12643 (April 10, 1992); see McAlhaney v.

United States Postal Service, EEOC Request No. 05940949 (July 7, 1995).

Here, the proposed letter of warning has become part of appellant's

Official Personnel File due to agency actions or inactions. Therefore,

the agency has taken further action or inaction in addition to the

proposal satisfying McAlhaney Supra.<1>

Accordingly, the agency's decision to dismiss allegation two for mootness

was improper and is REVERSED. Appellant' Complaint is REMANDED to

the agency for further processing in accordance with this decision and

applicable regulations.

ORDER (E1092)

The agency is ORDERED to process the remanded allegations in accordance

with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant

that it has received the remanded allegations within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue to

appellant a copy of the investigative file and also shall notify appellant

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 appellant requests a final decision

without a hearing, the agency shall issue a final decision within sixty

(60) days of receipt of appellant's request.

A copy of the agency's letter of acknowledgment to appellant 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 (K0595)

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 appellant. If the agency does not comply with the

Commission's order, the appellant may petition the Commission for

enforcement of the order. 29 C.F.R. �1614.503 (a). The appellant

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. �� 1614.408, 1614.409, and 1614.503 (g).

Alternatively, the appellant 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. �� 1614.408 and 1614.409.

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)

(Supp. V 1993). If the appellant files a civil action, the administrative

processing of the complaint, including any petition for enforcement,

will be terminated. See 29 C.F.R. �1614.410.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (R0993)

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. It is the position of the Commission that 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. You should be aware, however, that courts in some

jurisdictions have interpreted the Civil Rights Act of 1991 in a manner

suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR

DAYS from the date that you receive this decision. To ensure that your

civil action is considered timely, you are advised to file it WITHIN

THIRTY (30) CALENDAR DAYS from the date that you receive this decision

or to consult an attorney concerning the applicable time period in the

jurisdiction in which your action would be filed. 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 (Z1092)

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:

November 8, 1999

____________________________

DATE Carlton M. Hadden, Acting Director

1Appellant, in her complaint, and on appeal, alleges that she

has been subjected to a �hostile work environment�. However,

the agency fails to address this claim. Accordingly, the agency

shall make a determination as to whether or not the allegations

within the complaint rise to a level to create an abusive or

hostile work environment.