0120112664
11-19-2011
Valerie R. Johnson, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Valerie R. Johnson,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 0120112664
Agency No. 1C441001411
DECISION
Complainant filed a timely appeal with this Commission from the
Agency's decision dated March 22, 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. Upon review, the Commission finds that Complainant's complaint
was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1) and (2)
for failure to state a claim and untimely EEO Counselor contact.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Clerk at the Agency’s Cleveland P&DC Post Office facility in
Cleveland, Ohio.
On February 28, 2011, Complainant filed a formal complaint alleging that
the Agency subjected her to discrimination on the basis of sex (female)
when: 1) in August 2010, her supervisor harassed her by reversing her
pre-approved sick leave; 2) in April 2010, she was not allowed PIT
training; 3) on an unspecified date, her attendance record was changed
to reflect negative attendance and later corrected, which Complainant
alleged occurred so the supervisor could influence others against her;
4) on unspecified date, Shared Services had not received paperwork for
Complainant’s Office of Workers Compensation Programs (OWCP) claim;
5) on January 18, 2011, she was notified that her job was abolished
and she became an unassigned clerk; 6) on February 8, 2011 she was
reassigned to Tour 3 with a new starting time; and 7) on February 18,
2011, she received a Pre-Disciplinary Interview (PDI).
In its final decision, the Agency dismissed claims 1 and 2 for untimely
EEO Counselor contact. Specifically, the Agency asserts that Complainant
did not initiate contact with an EEO Counselor until December 29, 2010,
approximately (150) days after her preapproved sick leave was reversed
in August 2010, and (272) days after she was not allowed PIT training in
April 2010, well beyond 45 days after the alleged discriminatory actions
took place.
Concerning the remaining claims, the Agency determined that Complainant
failed to show that she was aggrieved. Particularly, the Agency
determined that claim 4 was a collateral attack on the OWCP process,
and claim 5 was a collateral attack on the Agency’s Negotiated Labor
Agreement (NLA) concerning job abolishment and reassignments. Finally,
the Agency found that Complainant is not harmed by the incidents alleged
in claims 3, 6 and 7.
The instant appeal followed. Complainant proffers no statement on appeal.
ANALYSIS AND FINDINGS
Untimely EEO Counseling – Claims 1 and 2
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.
Regarding claims 1 and 2, Complainant failed to seek EEO Counseling within
the limitation period and offers no justification for extending the time
limits. Thus, the Agency’s dismissal of claims 1 and 2 is affirmed.
Failure to State a Claim – Claims 3 - 7
An agency shall accept a complaint from any aggrieved employee
or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. §§
1614.103, .106(a). The Commission's federal sector case precedent has
long defined an "aggrieved employee" as one who suffers a present harm
or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. Diaz v. Department of the Air Force, EEOC
Request No. 05931049 (April 21, 1994). When the complainant does not
allege he or she is aggrieved within the meaning of the regulations,
the agency shall dismiss the complaint for failure to state a claim
pursuant to 29 C.F.R. § 1614.107(a)(1).
The Commission agrees with the Agency that claim 4 is more properly
addressed through the Department of Labor’s OWCP program. However,
we find that Complainant’s assertions that, as a result of sex
discrimination, her job was improperly abolished, she became an unassigned
regular, and her tour of duty was changed does state a timely and viable
claim which requires further processing. Moreover, to the extent
that the pre-disciplinary interview was related to Complainant’s
dissatisfaction with the change in her tour, this allegation should
also be included as evidence in support of her claim of discrimination.
The Agency’s argument that these actions occurred pursuant to the
collective bargaining agreement goes to the merits of Complainant’s
complaint, and is irrelevant to the procedural issue of whether she has
stated a justiciable claim under Title VII. See Osborne v. Department of
the Treasury, EEOC Request No. 05960111 (July 19, 1996); Lee v. United
States Postal Service, EEOC Request No. 05930220 (August 12, 1993);
Ferrazzoli v. United States Postal Service, EEOC Request No. 05910642
(August 15, 1991).
Accordingly, the Agency's final decision dismissing Complainant's
complaint is AFFIRMED in part and REVERSED in part. The complaint is
REMANDED to the Agency for further processing in accordance with the
following Order.
ORDER (E0610)
The Agency is ordered to process the remanded claims (job abolished,
became unassigned regular, reassigned to new tour, subjected to
pre-disciplinary interview) 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 (T0610)
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 (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
November 19, 2011
__________________
Date
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0120112664
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112664