0120162113
10-03-2016
Ria T.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Ria T.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120162113
Agency No. 4K-300-0038-12
DECISION
On May 8, 2014, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD 2) dated April 30, 2014, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Sales Service Distribution Clerk at the Agency's Decatur Main Post Office in Decatur, Georgia.
On March 16, 2012, Complainant filed a formal complaint alleging that the Agency discriminated against her based on reprisal for prior protected equal employment opportunity (EEO) activity when:
On October 4, 2011, she learned from a co-worker that a file containing her medical documentation was left lying around on the floor for other employees to see, exposing her social security number, birthday, account number, medical limitations and diagnosis.
In FAD 1, dated May 8, 2012, the Agency dismissed the complaint for failure to timely initiate EEO counseling. It reasoned that the alleged discrimination occurred on October 4, 2011, and Complainant initiated EEO counseling on December 7, 2011, beyond the 45 calendar day time limit.
Complainant appealed FAD 1. She alleged that she first initiated EEO contact by telephone on November 1, 2011, and after not receiving the EEO packet she initiated a second contact by telephone on December 7, 2011. In opposition to prior appeal, the Agency submitted its EEO Contact Center log. The log listed December 7, 2011, as the date on which Complainant initiated EEO contact.
In EEOC Appeal No. 0120122760 (April 7, 2014), the Commission vacated FAD 1. We found that given the parties dispute, we were unable to determine the initial EEO contact date. We ordered the Agency to supplement the record on the initial contact date. We specified that this must include information on the method by which telephone calls to its EEO Contact Center are logged and a description of any efforts the Agency made or makes to determine if Complainant called the EEO Contact Center within 45 calendar days of October 4, 2011, with a focus on November 1, 2011. We specified that this information must be in the form of any additional documentation and an affidavit, and that Complainant be given an opportunity to supplement the record.
After the Agency supplemented the record, it issued FAD 2. The supplementation included an affidavit by an EEO Data Analyst, who is responsible for processing employee/applicant contacts to its EEO Contract Center as well as call logs on Complainant - organized by her name, social security number, and employee identification number. The EEO Data Analyst stated that that when the employee/applicant calls the EEO Contact Center, they provide their name, mailing address, social security number and finance number to an Interactive Voice Response system which records their verbal responses. She wrote that the call is time-and-date stamped at that time by the Centralized Intake System, the software used to document calls coming into the EEO Contact Center, and this date-and-time stamp cannot be change or altered. The call logs reflected 11 calls by Complainant from March 2008 through December 7, 2011. Complainant made two calls on December 7, 2011, and her most recent prior call was on April 30, 2010.
In response to Agency questions, Complainant submitted a statement for the record supplementation. She wrote that given the time that elapsed, she did not recall the telephone number she called on November 1, 2011, nor the time of day she made the call. In response to the question on what information she left with the Voice Response System, Complainant wrote her name, address, phone number and place of employment.
On May 8, 2012, Complainant simultaneously filed a request for reconsideration from EEOC Appeal No. 0120122760 (April 7, 2014) and FAD 2. In EEOC Request No. 0520140319 (June 23, 2016), the Commission denied Complainant's request for reconsideration, but noted that her appeal would be processed.
ANALYSIS AND FINDINGS
An aggrieved person must seek EEO counseling within 45 days of the date of the alleged discriminatory action, or in the case of a personnel action, within 45 days of the effective date of the action. 29 C.F.R. � 16l4.105(a)(l) & .l07(a)(2).
In dismissing the complaint, the Agency reasoned that the alleged discrimination occurred on October 4, 2011, and Complainant initiated EEO counseling on December 7, 2011, beyond the 45 calendar day time limit. Complainant counters that she timely initiated EEO contact on November 1, 2011. After reviewing the supplemental record, we find that the weight of the evidence is that Complainant did not make EEO contact until December 7, 2011. This is supported by the affidavit of the EEO Data Analyst and the call logs, maintained in the course of regular business.
Accordingly, FAD 2 is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
October 3, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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