01A60540
07-06-2006
Yu C. Stough, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Western Area), Agency.
Yu C. Stough,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal No. 01A60540
Agency No. 4H320011305
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated September 14, 2005, 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.
The record reveals that complainant sought EEO counseling on July 18, 2005
and filed a formal complaint on August 22, 2005, in which alleged that she
was subjected to discrimination on the bases of race and national origin
(Asian), sex (female), and in reprisal for prior protected EEO activity
(arising under Title VII) when management restricted her work hours to
twelve (12) hours per week from May 28, 2005 to June 15, 2005.1
The FAD, dated September 14, 2005, concluded that complainant's
complaint was dismissed in accordance with EEOC Regulations at 29
C.F.R. � 1614.107(a)(2) for untimely contact in initiating her complaint.
According to the agency, complainant failed to initiate contact with a
counselor within forty-five (45) days from the date of the matter alleged
to be discriminatory. The EEO Counselor contact was ruled untimely
because complainant had a "reasonable suspicion of discrimination
beginning on May 28, 2005, the date management actually notified her
that she would be restricted to working only twelve (12) hours per week."
See Agency's Response to Appellant's Appeal, pg. 2 (December 14, 2005).
Therefore, the agency maintains that because complainant's July 18,
2005 EEO counselor contact was beyond the forty-five (45) day rule,
the Commission should affirm the agency's FAD dismissing complainant's
case.
On appeal, complainant argues that the agency's dismissal of the
complaint was in error because complainant did not become aware of
the alleged discrimination until July 5, 2005, and therefore, her
EEO contact on July 18, 2005 was timely. Specifically, complainant
asserts that on July 5, 2005, she learned that another Part Time Flexible
employee who had also been injured was treated differently than she was.
After asking the employee about his injury and how he was treated by
the agency, the employee provided complainant with a signed statement
on July 18, 2005 concerning the hours he worked while he was in an
injured status. Complainant alleges that she realized that she was a
victim of discrimination after reviewing the statement from the employee.
See Attachment 2, pg. 2 (October 14, 2005) ("I finally realized my alleged
claim was the true EEOC discrimination action."). Complainant states that
she then timely contacted an EEO counselor on July 18, 2005. Furthermore,
complainant argues that even if she had "reasonable suspicion" that
she was the victim of discrimination, the alleged discrimination was
continuous and ongoing from May 28, 2005 to June 15, 2005.
ANALYSIS AND FINDINGS
Pursuant to EEOC Regulation 29 C.F.R. � 1614.105(a)(1), 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.
Complainant has not alleged that she was unaware of the time limits for
filing a complaint, nor has she suggested that she was prevented for any
reason from seeking EEO counseling regarding her concerns. Complainant
claimed, however, that she had no reason to suspect discrimination until
she learned on July 5, 2005, that previously, a similarly situated
Caucasian Part-time Flexible male was not restricted from his duties
while working for the same employer, in the same unit, with the same
supervision, and was in fact back to regular working hours only two (2)
days after his injury. Here, the Commission finds that complainant's
obligation to seek EEO counseling within 45 days was not triggered until
her alleged discovery of a comparison employee on July 5, 2005 because it
was not until then that she had a reasonable suspicion of discrimination.
We therefore, find that complainant's contact with an EEO counselor on
July 18, 2005 was timely and the FAD improperly dismissed the instant
complaint.
Accordingly, the agency's decision to dismiss complainant's complaint is
REVERSED. The complaint is REMANDED to the agency for further processing
in accordance with this decision and the ORDER below.
ORDER
The agency is ordered to process the remanded claim in accordance with 29
C.F.R. � 1614.108. The agency shall acknowledge to 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 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 (K0501)
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 19848,
Washington, D.C. 20036. 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 (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 (R0900)
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 (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
July 6, 2006
__________________
Date
1 Complainant contends that she was informed verbally by local
management, on May 28, 2005, that she would be limited to 12 hours
per week because she was a Part Time Flexible employee who was injured
on the job. She asserts that she assumed that all Part Time Flexible
employees injured on the job were limited to a 12 hour work week per
agency or workers' compensation policy. She asserts that she discovered
on July 5, 2005, that no such policy existed, and that another employee
injured on the job was allowed to work 8 hour days, 6 days a week.
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01A60540
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036