Vivian R. Johnson Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJul 19, 2000
01a03288 (E.E.O.C. Jul. 19, 2000)

01a03288

07-19-2000

Vivian R. Johnson Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Vivian R. Johnson v. United States Postal Service

01A03288

07-19-00

.

Vivian R. Johnson

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A03288

Agency No. 1K-221-0003-00

DECISION

On March 24, 2000, complainant filed a timely appeal with this Commission

from a final agency decision (FAD) dismissing her complaint.<1>

The appeal is accepted by the Commission in accordance with 64

Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).

The record reflects that complainant requested pre-complaint processing

on August 5, 1999. On December 22, 1999, she filed a formal complaint

against the agency. Specifically, she alleged that she was discriminated

against because of her race (Black), color (unspecified), and sex

(female) when: (1) on an unspecified date in December 1998 and an

unspecified date prior to December 1998, her supervisor, A-1, warned

her not to date within the agency; (2) on unspecified date(s), A-1

started passing false information regarding her, was rude to her, and,

in March 1999, stopped speaking to her; and (3) on September 25, 1999,

A-1 tried to destroy her reputation when, after directing her to work on

September 26, 1999, A-1 wrote a note stating that complainant was angry

about having to work on September 26th and indicated that if complainant

called in sick on that date, she would need medical documentation.

The agency dismissed all three claims on the grounds that complainant

failed to state a claim. Furthermore, claims (1) and (2) were also

dismissed on the grounds that complainant sought EEO counseling in an

untimely manner. This appeal followed.

Claims (1) and (2)

64 Fed. Reg. 37,644, 37,656 (1999) (to be codified as 29 C.F.R. �

1614.107(a)(2)) provides, in pertinent part, that the agency shall dismiss

a complaint or a portion of a complaint that fails to comply with the

applicable time limits contained in � 1614.105. 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 an 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 period is

not triggered until a complainant reasonably suspects discrimination,

but before all the facts that support a charge of discrimination have

become apparent. Finally, our regulations provide that the agency or

the Commission shall extend the time period when the individual shows

that he was not notified of the time limits and was not otherwise aware

of them, that he did not know and reasonably should not have known that

the discriminatory matter or personnel action occurred, that despite

due diligence he was prevented by circumstances beyond his control from

contacting the counselor within the time limits, or for other reasons

considered sufficient by the agency or the Commission. 29 C.F.R. �

1614.105(a)(2).

We find that the agency properly dismissed claims (1) and (2) on the

grounds of untimely counselor contact. Complainant stated that she

was �[a]dvised to take all steps possible before filing [an] EEO.�<2>

According to complainant, she first contacted various management officials

about A-1's conduct and only sought EEO counseling when these efforts

failed. We have long held that internal appeals or informal efforts to

challenge an agency's adverse action does not toll the running of the

time limit to contact an EEO counselor. See Hosford v. Department of

Veterans Affairs, EEOC Request No. 05890038 (June 9, 1989). Accordingly,

complainant's attempt to resolve her concerns by contacting various

management officials is not sufficient to toll the 45-day time limit.

Therefore, we AFFIRM the agency's dismissal of claims (1) and (2).<3>

Claim (3)

The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999)(to be

codified and hereinafter cited as 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 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).

The Commission finds that the agency properly dismissed claim (3) on

the grounds that it failed to state a claim. Complainant has failed

to show how A-1's note and alleged comments caused her to suffer a harm

or loss regarding a term, condition or privilege of her employment. In

addition, we find that her claims taken together are not sufficient to

establish a claim of discriminatory harassment. See Cobb v. Department

of the Treasury, EEOC Request No. 05970077 (March 13, 1997).<4>

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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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, Acting Director

Office of Federal Operations

__07-19-00____________________________

Date

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.

2Complainant provided no indication who advised her.

3Because of our decision above, we will not address whether claims (1)

and (2) state a claim.

4The Commission has repeatedly found that claims of a few isolated

incidents of alleged harassment usually are not sufficient to support

a harassment claim. See Phillips v. Department of Veterans Affairs,

EEOC Request No. 05960030 (July 12, 1996); Cobb, supra.