A. Veronica Gray, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 14, 2000
01991120 (E.E.O.C. Apr. 14, 2000)

01991120

04-14-2000

A. Veronica Gray, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


A. Veronica Gray, )

Complainant, )

)

v. ) Appeal No. 01991120

) Agency No. 4B-060-0224-98

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION

On November 23, 1998, complainant filed a timely appeal with this

Commission from a final agency decision (FAD), pertaining to her complaint

of unlawful employment discrimination in violation of Title VII of

the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.,

the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29

U.S.C. � 621 et seq., and Section 501 of the Rehabilitation Act of 1973,

as amended, 29 U.S.C. � 791 et seq.<1> For the reasons that follow,

the FAD is AFFIRMED in part and REVERSED and REMANDED in part.

In her complaint, complainant alleged that she was subjected to

discrimination on the bases of sex, age, and disability when:

in January 1997, her supervisor took away two of her customer service

hours;

in the winter of 1998, her supervisor failed to investigate an incident

regarding a pine cone being left in her chair; and

on August 10, 1998 her supervisor did not allow her to leave the work

area to take medication and threatened her with being absent with leave

(AWOL).

The agency dismissed claims (1) and (2) pursuant to Volume 64

Fed. Reg. 37, 644, 37, 656 (1999)(to be codified and hereinafter cited as

29 C.F.R. � 1614.107(a)(2)) for failing to timely initiate contact with

an EEO Counselor. Upon review, the Commission finds that complainant's

August 10, 1998 EEO counselor contact regarding claims (1) and (2)

was untimely. It is the decision of this Commission that complainant

should have reasonably suspected discrimination regarding her claims

more than 45 days prior to her initial contact of an EEO Counselor.

Complainant has not presented persuasive evidence on appeal to justify

the extension of the applicable time limits for seeking counseling

regarding claims (1) and (2). The agency's decision dismissing claims

(1) and (2) pursuant to 29 C.F.R. � 1614.107(a)(2) is AFFIRMED.

The FAD dismissed claim (3) pursuant to Volume 64 Fed. Reg. 37, 644,

37, 656, (1999)(to be codified and hereinafter cited as 29 C.F.R. �

1614.107(a)(1)), for failure to state a claim. Specifically, the agency

found that complainant failed to demonstrate that she was aggrieved by

her supervisor's refusal to allow her to leave the work room floor to

take her medication and threat of AWOL if she did leave.

EEOC Regulation 29 C.F.R. � 1614.107(a)(1)) provides, in relevant part,

that an agency shall dismiss a complaint that fails to state a claim.

An agency shall accept a complaint from any aggrieved employee

or applicant for employment who believes that he or she has been

discriminated against by that agency because of race, color, religion,

sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,

.106(a). The Commission's federal sector case precedent has long defined

an "aggrieved employee" as one who suffers a present harm or loss with

respect to a term, condition, or privilege of employment for which

there is a remedy. Diaz v. Department of the Air Force, EEOC Request

No. 05931049 (April 22, 1994).

The only proper questions in determining whether a claim is within

the purview of the EEO process are (1) whether the complainant is

an aggrieved employee and (2) whether she has alleged employment

discrimination covered by the EEO statutes. An employee is �aggrieved�

if she has suffered direct and personal deprivation at the hands of the

employer. See Hobson v. Department of the Navy, EEOC Request No. 05891133

(March 2, 1990). In claim (3), complainant claims that management

refused to allow her to leave the work room floor to take medication,

and that she was threatened with disciplinary action if she did leave.

Complainant's claim is sufficient to render her an aggrieved employee.

Because she has alleged that the adverse action was based on sex, age,

and disability, she has raised a claim within the purview of the EEOC

regulations.

The agency's decision to dismiss claim (3) pursuant to 29 C.F.R. �

1614.107(a)(2) is REVERSED. The claim is REMANDED to the agency for

processing in accordance with this decision and applicable regulations.

ORDER (E0400)

The agency is ORDERED to process the remanded claim (claim 3) in

accordance with 64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified

and hereinafter referred to as 29 C.F.R. � 1614.108). The agency shall

acknowledge to the 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 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 (K1199)

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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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)(Supp. V 1993). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (T0400)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. You have the right to file a civil action in

an appropriate United States District Court WITHIN NINETY (90) CALENDAR

DAYS from the date that you receive this decision on both that portion

of your complaint which the Commission has affirmed AND that portion

of the complaint which has been remanded for continued administrative

processing. 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 your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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. If you file

a request to reconsider and also file a civil action, 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:

April 14, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ ____________________________

Date 1On November 9, 1999, revised regulations governing the EEOC's

federal sector complaint process went into effect. These regulations

apply to all federal sector EEO complaints pending at any stage in

the administrative process. Consequently, the Commission will apply

the revised regulations found at 64 Fed. Reg. 37,644 (1999), where

applicable, in deciding the present appeal. The regulations, as amended,

may also be found at the Commission's website at www.eeoc.gov.