0120111122
02-01-2012
Lorinda M. Richardson, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Lorinda M. Richardson,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120111122
Agency No. 4J606021810
DECISION
Complainant filed a timely appeal1 with this Commission from the Agency's
decision dated November 15, 2010, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Letter Carrier at the Agency’s Cesar Chavez Station facility in
Chicago, Illinois.
On November 22, 2010, Complainant filed a formal complaint alleging
that the Agency subjected her to discrimination on the bases of race
(African-American), color (Black), disability, and reprisal for prior
protected EEO activity under Title VII of the Civil Rights Act of 1964.
The Agency defined the issue in the complaint as concerning the reduction
of Complainant’s work hours, effective April 13, 2010, to two hours
per day.
On November 15, 2010, the Agency issued a decision dismissing
Complainant’s race, color and reprisal claims, pursuant to 29 C.F.R. §�
�1614.107(a)(2), for untimely EEO Counselor contact, noting Complainant
did not initiate contact with a counselor about the reduction in her hours
until July 30, 2010, beyond the 45-day limitation period. The Agency
determined that Complainant’s disability claim should be subsumed
within the McConnell v. United States Postal Service class action, Agency
No. 4B-140-0062-06, and indicated it would be addressed in that matter.
The instant appeal from Complainant followed from the decision to dismiss
portions of her complaint as untimely raised.
ANALYSIS AND FINDINGS
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.
As an initial matter, a fair reading of the complaint in this case,
along with the related EEO counseling report, reveals that the Agency
mischaracterized Complainant’s claim. Complainant has alleged that
the reduction of her hours was part of a larger pattern of ongoing
discriminatory and retaliatory harassment by management, that also
included being regularly bullied, allowing improper access to her medical
records, telling employees not to talk to Complainant, talking “nasty”
to her, denying her right to FMLA leave, and being physically aggressive
towards her.
The record confirms that Agency’s assertion that Complainant did not
initiate contact with an EEO Counselor on these matters until July 30,
2010. If the sole claim in the complaint was the April 2010 reduction
in her work hours, she would be beyond the 45-day limitation period.
However, the Supreme Court has held that a complainant alleging a hostile
work environment will not be time barred if all acts constituting the
claim are part of the same unlawful practice and at least one act falls
within the filing period. See National Railroad Passenger Corp. v. Morgan,
122 S.Ct. 2061 (June 10, 2002). As already noted, a fair reading of
this complaint indicates Complainant is alleging a pattern of ongoing
harassment (including the reduction in hours) that continued through the
date she sought EEO counseling in July 2010. For this reason, we find
that the Agency erred in dismissing the complaint on timeliness grounds.
Accordingly, the Agency's final decision dismissing Complainant's
complaint is REVERSED and the complaint is REMANDED to the Agency for
further processing as set forth below.
ORDER
The Agency is ordered to process the remanded claim (ongoing
harassment/hostile work environment) in accordance with 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.2
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 (R0610)
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 (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
February 1, 2012
__________________
Date
1 The Commission notes that the appeal form used by Complainant contained
an outdated address for the Commission. The Agency is cautioned about
using documents with the Commission’s outdated address on them.
2 In addition, on appeal, Complainant appears to be raising a breach
of settlement agreement claim regarding her complaints identified as
Agency Nos. 4J606003109 and 4J606007910. The Agency should promptly
address this breach claim in accordance with 29 C.F.R. § 1614.504.
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0120111122
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120111122