0120103433
10-26-2011
Sharon D. Bush, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Northeast Area), Agency.
Sharon D. Bush,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Northeast Area),
Agency.
Appeal No. 0120103433
Agency No. 1B126001110
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated July 19, 2011, 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 an Expeditor at the Agency’s Mid Hudson P&DC facility in Newburgh,
New York.
On June 25, 2011, Complainant filed a formal complaint alleging
that the Agency subjected her to discrimination on the bases of race
(African-American), sex (female), color (Black), and reprisal for prior
protected EEO activity under Title VII of the Civil Rights Act of 1964
when, on February 13, 2010, her bid card which had been submitted on
September 27, 2009, and misplaced, was located and no corrective action
was taken.
Briefly, Complainant submitted a bid on September 27, 2009 for another
position. The bid was put in the bid box. Complainant did not receive
the position and the job was awarded to someone else. When Complainant
questioned why she was not awarded the position, she was told that her bid
had never been received. Complainant alleged she gave management a copy
of the bid she had submitted, and requested a review of the situation,
but nothing was done.1 On February 13, 2010, a white male employee put
a bid in the same bid box, and was not selected for the position. When
that employee complained, he learned that his bid had been lost and
was not considered. Complainant alleged that management took immediate
action to rectify the situation. According to Complainant, the bid box
was “kicked, shaken turned upside down, and [her] bid as well as his
fell out.” Complainant asserts that in order to correct the error,
the white male was then awarded the position he bid on. However,
despite the fact that her lost bid was also found, no action was taken
by management to correct her situation.
The Agency dismissed the complaint, pursuant to 29 C.F.R. §�
�1614.107(a)(2), for untimely EEO Counselor contact. The instant appeal
followed.
ANALYSIS AND FINDINGS
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.
In its dismissal decision, the Agency reasoned that that the alleged
discriminatory event was Complainant’s failure to win a bid, which
occurred on September 27, 2009. However, Complainant did not initiate
contact with an EEO Counselor until March 15, 2010, which was well beyond
the forty-five (45) day limitation period. Based on these facts, the
Agency dismissed the complaint on timeliness grounds.
However, we find that the Agency has mischaracterized Complainant’s
claim. A fair reading of the complaint, related EEO counseling materials,
and Complainant’s statement on appeal indicate that Complainant is
actually alleging that when a white male employee’s bid was similarly
misplaced and then found, corrective action was immediately taken to
place him in the bid position. However, when her September 2009 bid
was located during this same February 2010 search of the box, she was
not provided with similar corrective action. It is this disparity in
treatment that is the crux of Complainant’s claim. As both misplaced
bids were found on the same date—February 13, 2010—and only the
white male employee’s situation was corrected, this is the date when
the alleged discriminatory action occurred. As Complainant contacted an
EEO Counselor approximately one month later, and well within the 45-day
limitation period, we find that the Agency’s dismissal for untimely
EEO counselor contact was in error.
The Agency’s decision is REVERSED and the matter is REMANDED for
further processing in accordance with the Order set forth below.
ORDER (E0610)
The Agency is ordered to process the remanded claim (disparate treatment
in how the misplaced bid was handled and the actions taken when the
lost bid was found) in accordance with 29 C.F.R. § 1614.108 et seq.
The Agency shall acknowledge to the Complainant that it has received
the remanded claims 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 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 (K0610)
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 77960, Washington, DC
20013. 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 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) (1994 & Supp. IV 1999).
If the Complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. § 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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
77960, Washington, DC 20013. 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 (R0610)
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 within ninety (90) calendar days from the date
that you receive this decision. 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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 26, 2011
__________________
Date
1 Complainant later filed a grievance on the matter. Her bid still
could not be located and she obtained no corrective action through the
grievance process.
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0120103433
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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