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. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120111122 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120111122