Viola D. Johnson-Washington, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.

Equal Employment Opportunity CommissionDec 18, 2009
0120092663 (E.E.O.C. Dec. 18, 2009)

0120092663

12-18-2009

Viola D. Johnson-Washington, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.


Viola D. Johnson-Washington,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Southeast Area),

Agency.

Appeal No. 0120092663

Agency No. 4H327006309

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated April 29, 2009, 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 improperly

dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state

a claim. For the following reasons, the Commission MODIFIES.

ISSUES PRESENTED

Whether the agency properly dismissed: claim (1) for failure to timely

contact a counselor; and claim (2) for failure to state a claim.

BACKGROUND

At the time of the alleged discriminatory action, complainant was employed

as a City Carrier with the agency's West Palm Beach, Florida facility.

On January 7, 2009, complainant alleges that upon making a request for

annual leave, she was notified by management that she had to resubmit

her request after the "Annual Prime Time" leave sign up was completed.

Complainant alleges that she resubmitted her leave request on January

15, 2009; however, on January 16, 2009, management denied her request

on the grounds that the maximum annual leave percentages had already

been met. On January 30, 2009, complainant further contends that her

supervisor intentionally gave her the wrong Delivery Point Sequence (DPS)

count, a figure which can help mail carriers determine the correct amount

of street time on a specific route.

According to the record, complainant's initial EEO contact occurred on

March 4, 2009. In her complaint, filed on April 14, 2009, complainant

alleged that she was subjected to discrimination in reprisal for prior

protected EEO activity under Title VII when: (1) on January 7, and 15,

2009, she was denied Annual Leave; and (2) on January 30 and 31, 2009,

she was given the wrong Delivery Point Sequence (DPS) mail count.

In its final decision, the agency found that complainant requested

counseling approximately 48-51 days after the alleged discriminatory

action occurred. On these grounds, The agency dismissed claim (1)

as untimely, pursuant to 29 C.F.R. � 1614.107(a)(2). The agency also

dismissed claim (2) for failure to state a claim, pursuant to 29 C.F.R. �

1614.107(a)(1), finding that complainant had not suffered a harm with

respect to a term, condition, or privilege of employment.

CONTENTIONS ON APPEAL

On appeal, complainant reiterates the arguments made in her formal

complaint. In its appeal brief, the agency reiterates the arguments

made in its final agency decision.

FINDINGS AND ANALYSIS

Claim (1)

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.

With respect to claim (1), we agree with the agency's finding that

complainant did not initiate contact with an EEO counselor within the

45 day period stipulated by 29 C.F.R. 1614.107(a)(2). The record shows

that management's denial was dated January 16, 2009. Nonetheless,

complainant's initial EEO contact on March 4, 2009, occurred 47 days

after the alleged discriminatory incident and was therefore untimely.

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. See 29 C.F.R.

� 1614.105(a)(2). In the instant case, however, complainant has

offered no argument or basis to explain why an extension is warranted.

The record indicates that complainant had engaged in previous EEO

activity. Further, the record indicates that EEO Posters were prominently

displayed at complainant's work location. The posters expressly noted

that individuals have 45 days to contact a counselor. Therefore, we

find that since complainant was familiar with the EEO complaint process

and was on notice of the timeliness requirements, she should have been

aware of the 45 day requirement to contact a counselor. On these bases,

we find that an extension is not warranted.

Claim (2)

The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in

relevant part, that an agency shall dismiss a complaint that fails to

state a claim. An agency shall accept a complaint from any aggrieved

employee or applicant for employment who believes that 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).

Notwithstanding the above, we find that the agency erred by addressing

whether claim (2) affected a term or condition of complainant's

employment. Complainant's allegation of discrimination is based

on reprisal. The anti-retaliation provisions of the employment

discrimination statutes seek to prevent an employer from interfering

with an employee's efforts to secure or advance enforcement of the

statutes' basic guarantees, and are not limited to actions affecting

employment terms and conditions. Burlington Northern & Santa Fe

Railroad. Co. v. White, 548 U.S. 53 (2006). To state a viable claim of

retaliation, complainant must allege that: (1) she was subjected to an

action which a reasonable employee would have found materially adverse,

and (2) the action could dissuade a reasonable employee from making or

supporting a charge of discrimination. Id. While trivial harms would

not satisfy the initial prong of this inquiry, the significance of

the act of alleged retaliation will often depend upon the particular

circumstances. See also EEOC Compliance Manual, No. 915.003 (May 20, 1998)

(any adverse treatment that is based upon a retaliatory motive and is

reasonably likely to deter the charging party or others from engaging

in protected activity states a claim).

In applying the foregoing standard to claim (2), we find that complainant

has established that the agency's alleged action of giving her an

incorrect DPS mail count because of her prior EEO activity: (i) was

materially adverse; and (ii) could dissuade a reasonable employee from

making or supporting a charge of discrimination.

CONCLUSION

After a careful review of the record and contentions on appeal, including

those not specifically addressed herein, the Commission AFFIRMS the

agency's dismissal of claim (1); however, with respect to claim (2),

we find that complainant stated a claim of reprisal discrimination.

Accordingly, we REVERSE and REMAND the agency's dismissal of claim (2).

ORDER (E0408)

The agency is ordered to process the remanded claim in accordance with

29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant

that it has received the remanded claim 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 (K1208)

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 (M1208)

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 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 (T0408)

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 (Z1008)

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

______12/18/09____________

Date

2

0120092663

6

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

6

0120092663