01A30804_r
04-05-2004
Teri A. Ransom, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Teri A. Ransom v. United States Postal Service
01A30804
April 5, 2004
.
Teri A. Ransom,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A30804
Agency No. CC-801-0092-02
Hearing No. 320-A2-8367X
DECISION
Complainant, as class agent, filed an appeal regarding her class complaint
alleging discrimination in violation of Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
The record reveals that complainant worked as a Distribution Clerk at
the agency's Denver, Colorado, General Mail Facility, through June
10, 1994.<1> Originally, complainant contacted an EEO Counselor on
October 17, 1996, regarding an individual complaint of discrimination.
In her formal individual complaint (1E-801-0020-97) dated November 18,
1996, complainant alleged discrimination based on disability when: (1)
the agency made inaccurate statements with regard to her claim at OWCP;
(2) on April 26, 1994, her job description omitted the task of taking
written reports; (3) on May 18, 1994, complainant was denied the use of
a keyboard; (4) on June 10, 1994, complainant was sent home and told not
to return due to complaining about the job description of April 26, 1994;
(5) on June 13, 1994, complainant was not allowed to work a job she had
located that was within her work restrictions by the injury compensation
office; and (6) on September 17, 1996, complainant was told to retire,
resign, or be fired as she had been on Leave Without Pay too long.
The agency issued a final decision dismissing issue (1) for failure to
state a claim and issues (2) - (6) for failure to raise these issues
with an EEO Counselor. Complainant appealed the agency's dismissal to
the EEOC's Office of Federal Operations (OFO). On December 4, 1997, OFO
issued a decision in Ransom v. United States Postal Service, EEOC Appeal
No. 01973139 affirming the dismissal of issue (1) for failure to state a
claim and reversing and remanding issues (2) through (6). The remanded
issues were investigated and thereafter complainant requested a hearing
before an EEOC Administrative Judge (AJ). On March 28, 2000, an AJ found
that the agency did not discriminate against complainant on issues (2),
(3), (5) and (6). The AJ also ruled that the agency discriminated
against complainant with regard to issue (4) and awarded relief.
The agency fully implemented the AJ's decision.
Complainant then filed an appeal from the agency's decision to OFO and
submitted an �appeal brief� stating that she was not appealing the
agency's decision, but was seeking to file a class action on behalf
of other agency employees. On November 28, 2000, in Ransom v. United
States Postal Service, EEOC Appeal No. 01A05932, the Commission affirmed
the agency's final order and noted that to the extent complainant seeks
to file a class action, she should seek EEO counseling pursuant to the
Commission's regulations. Thereafter, complainant filed a request for
reconsideration of the Commission's decision in Ransom v. United States
Postal Service, EEOC Request No. 05A10155, which was denied on March
21, 2001. A second request for reconsideration was filed in Ransom
v. United States Postal Service, EEOC Request No. 05A10540, which was
denied on August 9, 2001.
Subsequently, on September 5, 2001, complainant raised the following
issues in pre-complaint class counseling: (1) limited duty job offer
dated April 2, 1994, was inaccurate and did not address writing
reports for the Postal Inspection Service; (2) denied promotional
opportunities from 1992 to present due to limited duty status; (3)
denied the opportunity to bid jobs, because of medical restrictions;
(4) denied overtime from 1992 to present due to limited duty status;
(5) hostile work environment created in 1992 to present, because of
Injury Compensation Office interfering with OWCP process.
Complainant filed a formal EEO class complaint with the agency dated April
10, 2002, alleging discrimination based on disability and retaliation
when: since at least 1982, permanently injured employees have suffered
ongoing continuous violations of reprisal and hostile work environment
harassment. Complainant alleges that the agency seeks to minimize costs
by constructively discharging these employees.
Complainant's complaint was forwarded to the EEOC Denver District
Office for a decision on certification. On September 10, 2002, an EEOC
Administrative Judge, issued a Partial Dismissal of Hearing Request noting
that complainant's claim that she was denied promotional opportunities
as a permanently disabled employee comes within the definition of the
certified class complaint of Chandler Glover, et al. v. United States
Postal Service, EEOC Case No. 320-A2-8011X, and finding this claim
should be subsumed within the Glover Class.
On September 26, 2002, the AJ issued a decision denying certification
of the class on the grounds that complainant failed to initiate timely
EEO Counselor contact. The AJ found November 28, 2000, the date of
EEOC's decision in Ransom v. United States Postal Service, EEOC Appeal
No. 01A05932, which advised complainant to seek EEO counseling if she
wished to pursue her class action, as the latest possible date which
could have plausibly triggered the 45-day time limit for her to initiate
counselor contact. With regard to issues (2), (4) and (5), the AJ noted
that even though complainant alleged that these issued continued to the
present, they would still be time barred since the discriminatory acts
underlying these claims ended no later than May 27, 1998, when complainant
was no longer an agency employee. The AJ rejected complainant's claim
that the EEOC's decision on her second request for reconsideration,
EEOC Request No. 05A10540 (August 9, 2001), controls the date on which
the 45-day time limit should begin to run. Further, the AJ rejected
complainant's allegation that her fear of being physically present on
agency premises constituted a valid reason for extending the 45-day
time limit. The AJ noted that his Order did not dismiss or otherwise
affect the claim that was subsumed in the Glover class complaint, per
his September 10, 2002 Partial Dismissal of Hearing Request.
On October 21, 2002 the agency issued a Notice of Final Action fully
implementing the AJ's decision dismissing complainant's complaint for
untimely EEO Counselor contact.
Complainant filed the present appeal. In her appeal, complainant explains
that she had a fear of counseling based on her previous experiences
and states that she thought she should exhaust her appeal rights before
�inviting abuse.� Complainant also claims that the Commission's November
28, 2000 decision was based on the wrong appeal brief and thus, argues
that August 9, 2001, the date of the Commission's decision in her second
request for reconsideration, should be used to calculate timeliness.
She notes that she sought counseling twenty-six days after the August 9,
2001 decision. Further, complainant states that she has physical and
psychological difficulties which were made worse by the agency and caused
her fear of contacting the EEO Office again. Complainant also claims
that the discrimination alleged in her complaint occurred from 1982 to
present rather than 1992 to present as cited by the agency. Additionally,
complainant argues that she has established a continuing violation and
constructive discharge which she claims she diligently pursued.
In response to complainant's appeal, the agency reiterates its position
that complainant's complaint was properly dismissed for untimely EEO
Counselor contact. The agency notes that complainant first initiated
counselor contact with regard to her class concerns on September 5, 2001.
The agency states that for the complaint to be timely, some incident of
the alleged discrimination must have occurred on or after July 22, 2001.
The agency notes that the latest alleged discriminatory conduct in the
complaint occurred on April 2, 1994, and thus states that her September
5, 2001 counselor contact was untimely. With regard to complainant's
claim that the discrimination began in 1982, the agency argues that
this does not effect the fact that the latest date of discrimination
is May 27, 1998, the date complainant's official employment with the
agency terminated. The agency states that the Commission's August
9, 2001 decision in Request No. 05A10540 reiterated the Commission's
advisement in the November 28, 2000 decision to seek counseling on her
class claims but did not extend the time limit for initiating contact.
Further, the agency claims that complainant has not shown that she was
prevented from timely initiating counselor contact based on her physical
and psychological difficulties. Finally, the agency claims that since
complainant failed to provide evidence of any discriminatory act during
the time period of July 22, 2001 to September 5, 2001, she failed to
establish a continuing violation that would suspend the time limit for
contacting a counselor.
ANALYSIS
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.
In the present case, we find that complainant's complaint was properly
dismissed for untimely counselor contact pursuant to 29 C.F.R. �
1614.107(a)(2). With regard to the class issues identified in her
request for pre-complaint counseling, we find that complainant should
have reasonably suspected discrimination at the latest on June 10, 1994,
her last day of work at the agency. The record reveals that complainant's
earliest EEO Counselor contact occurred on October 17, 1996, with regard
to her individual complaint 1E-801-0020-97. We note that on October 17,
1996, and in her subsequent formal individual complaint, complainant
identified several issues which were raised in or related to the present
class complaint, including: the April 1994 job description; interference
of the Injury Compensation Office with OWCP; not being allowed to work a
job that was within her work restrictions; being sent home on June 10,
1994, and told not to return; and being told that she was to retire,
resign or be fired, as she had been on Leave Without Pay for too long.
Although there is no evidence complainant specifically sought class
counseling with regard to the previous issues in October 1996, the
Commission finds that even if we considered complainant's October 17,
1996 counselor contact to constitute a request for class counseling,
this contact would be considered untimely.
Similarly, with regard to the class claim of constructive discharge, the
record reveals that complainant's last date of official employment with
the agency was May 27, 1998, the date she began receiving disability
retirement benefits. Clearly, complainant reasonably suspected or
should have suspected discrimination with regard to the identified
constructive discharge claim by May 27, 1998. The record reveals
that she did not specifically raise the constructive discharge claim
until she filed her September 15, 2000 �appeal brief� in EEOC Appeal
No. 01A05932 with the Commission, a copy of which complainant states was
carbon copied by certified mail to the agency's EEO Office.<2> Thus,
we find that complainant failed to seek timely EEO Counselor contact
with regard to the identified May 27, 1998 constructive discharge claim.
Although complainant claims to represent other purported class members, we
note that she has failed to identify any other specific timely incidents
of alleged discrimination by other class members and failed to provide
sufficient justification for an extension of the applicable forty-five
day time limit.
Finally, we note that complainant's appeal does not challenge the AJ's
September 10, 2002 finding that her claim concerning the denial of
promotional opportunities falls within the definition of the Glover
class action and shall be subsumed within that complaint. Thus, the
present decision will not address the AJ's Order regarding this claim.
CONCLUSION
Accordingly, the agency's final action dismissing complainant's class
complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 5, 2004
__________________
Date
1The record reveals that June 10, 1994, was
the last date complainant worked at the agency. However, the last date
of her official employment with the agency was May 27, 1998, the date
she began receiving disability retirement benefits.
2While we note that the Commission's decision in 01A05932 advised
complainant that to the extent she seeks to file a class action for other
agency employees, she should seek EEO counseling and proceed pursuant
to our regulations, we find that this decision did not advise that such
subsequent EEO contact would be found timely.