0120122973
12-21-2012
Lucinda S. Lewis, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Lucinda S. Lewis,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120122973
Agency No. 4G-720-0025-12
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated June 5, 2012, dismissing her complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Postmaster at the Agency's Post Office in Dover, Arkansas.
The record indicated that Complainant was transferred out of her Postmaster position at Dover and sent as a Manager to the Russellville North Station effective August 6, 2011. She was told she was getting a "time out" from the Dover location so that the employees could settle down. Complainant was feeling stress due to the situation, and was on sick leave until September 15, 2011. In October 2011, the Manager of Post Office Operations for the Arkansas District (Manager) moved Complainant to the Post Office in Delaware, Arkansas, as the Officer in Charge. The Manager believed that this would be a less stressful position. Complainant began asking when she could return to her Postmaster position in Dover. Complainant noted that the Delaware position was less stressful; however she had no back up in the event she needed to take time off to care for her daughter. The Manager conducted the internal investigation regarding Complainant's behavior and told the employees at Dover that she expected to be able to remove Complainant as the Postmaster. Complainant asked the Manager about returning to Dover. She claimed that the Manger told her that she would find out by January 2, 2012, after the holiday rush. Complainant learned that on December 28, 2011, the Officer in Charge at Dover received an email from the Manager informing him that Complainant would never go back to her position.
As such, Complainant contacted the EEO Counselor on December 28, 2011, alleging discrimination and harassment. During the informal counseling process, Complainant was issued a Letter of Warning (LOW) by the Manager on January 27, 2012. The LOW was issued in lieu of a 14 day suspension.
The matter could not be resolved informally. On March 30, 2012, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of disability and age (61) when: (1) She was subjected to harassment by the Manager of Post Office Operations for the Arkansas District (Manager). Complainant raised the events from August 2011 through December 28, 2011, in support of her claim of harassment. In addition, Complainant alleged she was subjected to retaliation for the instant matter when, (2) on January 27, 2012, she was issued the LOW.
The Agency defined the complaint as two claims of discrimination when Complainant was removed as Postmaster in August 2011, and when she was issued the proposed LOW in January 2012. The Agency dismissed the reassignment finding that Complainant failed to contact an EEO Counselor within 45 calendar days. As such, the Agency dismissed claim (1) pursuant to 29 C.F.R. �1614.107(a)(2). The Agency also dismissed claim (2) pursuant to 29 C.F.R. � 1614.107(a)(5) for raising a proposed action. The Agency noted that Complainant was not actually issued the LOW. Therefore, the Agency concluded that claim (2) should be dismissed.
This appeal followed.
ANALYSIS AND FINDINGS
Claim (1)
As an initial matter, we note that the Agency failed to properly identify Complainant's first claim of discrimination. A fair reading of the complaint shows that Complainant alleged that she was subjected to harassment based on her age and disability. As part of her claim of harassment, she indicated that the Manager removed her from her Dover Postmaster position and did not return her to the position following an internal investigation in December 2011.
EEOC Regulation 29 C.F.R. �1614.107(a)(2) states 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, �1614.106 and �1614.204(c), unless the agency extends the time limits in accordance with �1614.604(c).
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. EEOC Regulation 29 C.F.R. �1614.105(a)(2) allows the agency or the Commission to extend the time limit if the complainant can establish that complainant was not aware of the time limit, that complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence complainant was prevented by circumstances beyond her control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the agency or Commission.
We note that the Supreme Court of the United States 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 Nat'l R.R. Passenger Corp. v. Morgan, 122 S.Ct. 2061 (June 10, 2002). The Court further held, however, that "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Id. The Court defined such "discrete discriminatory acts" to include acts such as termination, failure to promote, denial of transfer, or refusal to hire, acts that constitute separate actionable unlawful employment practices. Id. Finally, the Court held that such untimely discrete acts may be used as background evidence in support of a timely claim. Id. Here, Complainant alleged a series of events which occurred from August 2011 through December 2011. Further, we note that Complainant was not made aware that her transfer from Dover was permanent until December 2011. She contacted the EEO Counselor on December 28, 2011, well within 45 calendar days. Therefore, we find that the Agency's dismissal of the matter was inappropriate.
Claim (2)
The regulation set forth at 29 C.F.R. � 1614.107(a)(5) provides, in part, that the agency shall dismiss a complaint that alleges that a proposal to take a personnel action, or other preliminary step to taking a personnel action, is discriminatory. We also note that the Commission has a policy of considering reprisal claims with a broad view of coverage. See Carroll v. Dep't of the Army, EEOC Request No. 05970939 (April 4, 2000). 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, 126 S. Ct. 2405 (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 this case, the record clearly showed that Complainant was issued the proposed LOW on January 27, 2012. Complainant asserted that the disciplinary was issued to her in retaliation for contacting the EEO counselor on December 28, 2011. Therefore, we find that the Agency's dismissal of claim (2) was not appropriate.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision and REMAND the matter for further processing in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108. 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 (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
December 21, 2012
__________________
Date
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0120122973
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120122973