U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Debra R.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 0120170415 Agency No. 1G333000816 DECISION Complainant filed a timely appeal with this Commission from the Agency's decision dated September 29, 2016, 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,. 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 Mail Handler at the Agency's International Service Center facility in Miami, Florida. On September 10, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American), national origin (American), sex (female), color (Black), and age when: (1) Starting in June 2013, on numerous dates, she was harassed and threatened by coworkers and, when she reported it, management failed to properly address the matter. As a result of the stress caused by the continuing harassment, Complainant alleged she has had to miss work. (2) She was issued a notice of removal, dated September 21, 2015, with an effective date of October 21, 2015. The Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO counselor contact. The instant appeal followed. In her appeal, Complainant states she was not aware of her termination until she contacted the EEO counselor. She states she was out on leave when the notice of removal was issued. 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. Removal Claim The Agency dismissed Complainant's claim concerning her removal notice for untimely EEO counselor contact, stating that Complainant's removal was effective on October 21, 2015, but Complainant did not initiate contact with an EEO Counselor until May 20, 2016, which was well beyond the forty-five (45) day limitation period. However, on appeal, Complainant states that she never received the notice of removal. She explains that she initiated EEO counseling as a result of the ongoing harassment. Complainant claims that during EEO counseling she learned, for the first time, that she had been issued the notice of removal and, as a result, included it as part of her formal complaint. The record seems to indicate that, despite the effective date of October 21, 2015, the removal did not become effective on that date. The EEO counselor's report, dated September 21, 2016, stated that Complainant's supervisors said that she "has been in an AWOL status since December 16, 2015 to present." Thus, it appears that the removal has not been effectuated. As noted above, 29 C.F.R. § 1614.105(a)(1) requires that aggrieved individuals must seek EEO counseling within 45 days of the effective date of a personnel action. Therefore, as the removal action here had not yet been effectuated when Complainant sought EEO counseling in May 2016, it cannot be said that her contact was untimely made. Therefore, the dismissal of Complainant's claim concerning the notice of removal will be reversed. Harassment Claim The Agency's dismissal decision also determined that the latest incident in Complainant's claim of ongoing harassment occurred in "December 2014," but she did not seek counseling until May 2016 or "506 days" later. However, a review of Complainant's complaint form shows that in the section entitled "Date on Which Alleged Act(s) of Discrimination Took Place," Complainant indicated numerous dates that included dates in 2015 and 2016. Moreover, a fair reading of her complaint, in conjunction with the EEO counseling report as well as Complainant's argument on appeal, indicates that she is alleging ongoing harassment by coworkers that has occurred far later than December 2014 without proper management intervention. As such, we find that the Agency has again failed to support its dismissal decision with regarding to Complainant's harassment claim. Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED. The complaint is hereby REMANDED to the Agency as set forth below. ORDER (E1016) The Agency is ordered to process the remanded claims (notice of removal and ongoing harassment) in accordance with 29 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 was issued. 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 was issued, 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 (M0416) 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 Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations February 24, 2017 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120170415 2 0120170415