Roslyn Y. Bowens, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 17, 2000
01982415 (E.E.O.C. Mar. 17, 2000)

01982415

03-17-2000

Roslyn Y. Bowens, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Roslyn Y. Bowens v. United States Postal Service

01982415

March 17, 2000

Roslyn Y. Bowens, )

Complainant, )

)

v. ) Appeal No. 01982415

) Agency No. 4C-190-0213-97

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

Complainant filed an appeal with this Commission from a final decision of

the agency concerning her complaint of unlawful employment discrimination

in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. �2000e et seq., and Section 501 of the Rehabilitation Act of

1973, as amended, 29 U.S.C. 791 et seq.<1> The final agency decision was

issued on January 6, 1998. The appeal was postmarked January 30, 1998.

Accordingly, the appeal is timely (see 64 Fed. Reg. 37,644, 37,659

(1999) (to be codified and hereinafter cited as 29 C.F.R. �1614.402(a)),

and is accepted in accordance with 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified at 29 C.F.R. �1614.405).

ISSUES PRESENTED

1. The first issue on appeal is whether the agency properly dismissed

claims 2-3 of the complaint on the grounds of untimely EEO contact.

2. The second issue on appeal is whether the agency properly dismissed

claim 1 of the complaint on the grounds that it states the same claim

as that pending before or has been decided by the agency.

BACKGROUND

Complainant initiated contact with an EEO Counselor on June 11, 1997.

In a formal EEO complaint dated October 24, 1997, complainant claimed

that she was discriminated against on the bases of her sex (female)

and physical disability (perceived-pregnancy) when:

1. On May 7, 1997, she was told that her request for a transfer was

denied because she could have had an accident that would cause her to

lose her baby and the agency could be liable.

2. On April 4, 1997, she was notified that she had not been selected

for a promotion.

3. On January 30, 1997, she was denied her light duty request for a

transfer to another station no more than fifteen minutes from her home.

In its final decision, the agency dismissed claims 2-3 of the complaint

on the grounds that complainant failed to contact an EEO Counselor in

a timely manner. The agency determined that complainant initiated contact

with an EEO Counselor on June 11, 1997, which was more than 45 days after

the incidents that occurred on January 30, 1997, and April 4, 1997,

respectively. The first claim was dismissed on the grounds that it states

the same claim that is pending before or has been decided by the agency.

According to the agency, the first claim is identical and arises from the

same transaction as the matters raised in claims 2-3. The agency

determined that all of the claims arise from the same set of facts and

circumstances.

On appeal, complainant maintains that with regard to claim 3 it was

not until June 1997, that she learned that a white male who had been in

a car accident had his request for a transfer approved. According to

complainant, she was told that the agency was not required to accommodate

her because her pregnancy was not related to her position. Complainant

states that she had no reason to question what she had been told until

she learned that the white male's request for a transfer was approved.

With regard to claim 2, complainant contends that she did not know until

May 7, 1997, why she was not promoted to the supervisory position.

Complainant states that she was informed on that date that she was

not selected because of her limited time in a supervisory capacity.

The record indicates that complainant believes she would have had

sufficient time to demonstrate her abilities in a supervisory capacity

had her request for a transfer been granted.

ANALYSIS AND FINDINGS

Volume 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter

cited as 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.

The record reveals that complainant was notified on April 4, 1997, that

she was not selected for a promotion to the position of Supervisor,

Customer Service, EAS-16. On January 30, 1997, the agency denied

complainant's light duty request to be transferred to another station no

more than fifteen minutes from her home. On appeal, complainant claims

that she was unaware of the alleged discrimination with regard to her

non-promotion until May 7, 1997, when she was informed that she was

not promoted due to her limited experience in a supervisory capacity.

Complainant attributes her limited time as a supervisor to the agency's

denial of her transfer request during her pregnancy. Complainant also

claims that she did not know the denial of her transfer request was the

result of discrimination until she learned in June 1997, that a white

male's request for a transfer had been approved. The agency failed to

present any evidence to show that complainant had a reasonable suspicion

of discrimination prior to her obtaining further information about these

incidents. The agency has the burden of providing evidence and/or proof

to support its final decisions. Ericson v. Department of the Army,

EEOC Request No. 05920623 (January 14, 1993); Gens v. Department of

Defense, EEOC Request No. 05910837 (January 31, 1992). Consequently,

we find that complainant's contact of an EEO Counselor on June 11,

1998, was timely with respect to claims 2-3. Accordingly, the agency's

dismissal of claims 2-3 of the complaint on the grounds of untimely EEO

contact was improper and is REVERSED. These claims are hereby REMANDED

for further processing pursuant to the ORDER below.

Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

cited as 29 C.F.R. � 1614.107(a)(1)) provides that the agency shall

dismiss a complaint that states the same claim that is pending before

or has been decided by the agency or Commission.

With regard to claim 1 of her complaint, we find that the agency's

dismissal was proper. In claim 1, complainant sets forth the agency's

articulated reason for the denial of her transfer, which is the issue

in claim 3. We note, however, that complainant does not identify any

different adverse action in claim 1, then that already set forth in

claim 3. Accordingly, the agency's decision to dismiss claim 1 on the

grounds that it set forth the same claim as raised in claim 3 was proper

and is AFFIRMED.

CONCLUSION

The agency's dismissal of claim 1 of the subject complaint is hereby

AFFIRMED. The agency's dismissal of claims 2-3 of the subject complaint

is hereby REVERSED. Claims 2-3 are hereby REMANDED for further processing

pursuant to the ORDER below.

ORDER (E1199)

The agency is ORDERED to process the remanded claims (Claims 2-3) in

accordance with 64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified

and hereinafter referred to as 29 C.F.R. � 1614.108). The agency shall

acknowledge to the complainant that it has received the remanded claims

(Claims 2-3) within thirty (30) calendar days of the date this decision

becomes final. The agency shall issue to complainant a copy of the

investigative file and also shall notify complainant 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 complainant requests a final decision without

a hearing, the agency shall issue a final decision within sixty (60)

days of receipt of complainant's request.

A copy of the agency's letter of acknowledgment to complainant and an

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 (K1199)

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 complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement

of the order. 29 C.F.R. �1614.503(a). The complainant 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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. ��1614.407, 1614.408) and 29 C.F.R. �1614.503(g).

Alternatively, the complainant 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. ��1614.407 and 1614.408. 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 complainant files a civil action, the administrative processing of

the complaint, including any petition for enforcement, will be terminated.

See 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �1614.409).

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 (T1199)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed AND that portion

of the complaint which has been remanded for continued administrative

processing. 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 your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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:

March 17, 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

1On 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.