0120083957
02-11-2009
Ana Brindusescu, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ana Brindusescu,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120083957
Agency No. 4F926017708
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated August 25, 2008, 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.
In its decision, the agency framed complainant's complaint as alleging
that she was subjected to discrimination on the bases of national origin,
sex, age, and in reprisal for prior protected EEO activity when:
1. On unspecified date(s), complainant became aware that a junior PTF
clerk was given a detail assignment during which he worked 40 plus hours
per week; and
2. On May 12, 2008, complainant's supervisor left two notices showing
transfer opportunities on complainant's window counter.
The agency dismissed claim (1) pursuant to 29 C.F.R. 1614.107(a)(8),
for alleging dissatisfaction with the processing of a prior
complaint, and claim (2) for failure to state a claim pursuant to 29
C.F.R. 1614.107(a)(1). Concerning claim (1), the agency found that in her
complaint complainant stated that she had filed a previous EEO complaint
that was settled during mediation on June 27, 2007, and that the agreement
stipulated that management would make every effort to communicate and
involve complainant in decisions about her hours to provide complainant
with 40 hours of work. Based on this statement, the agency determined
that complainant was "in essence alleging that management did not comply
with the terms of the June 27, 2007 settlement agreement," a matter that
is properly addressed within the context of the underlying settlement
agreement pursuant to 29 C.F.R. 1614.504(a), and not in a new complaint.
As concerns claim (2), the agency found that complainant failed to show
that she was aggrieved by the action claimed, and that the claim failed
to rise to the level of a hostile work environment.
On appeal, complainant asserts with regard to claim (1) that "I do not
believe that the current case is a failure to comply issue," and that
the "current issue concerns management giving preferential treatment to
younger employees . . . ." Complainant also claims that "my work hours
have been reduced from approximately 38 hours per week to approximately
23 hours per week," while the "younger PTF's are working up to 40 hours
per week." With regard to claim (2), complainant also asserts that
"the second issue concerns the creation of a hostile work environment
whereby management is leaving notices and notes concerning transfers."
We note that, in addition to the statement cited by the agency concerning
claim (1), the record indicates that complainant's formal complaint stated
that "[m]anagement was well aware of my desire to increase my hours,
and yet when this opportunity came up, they gave the hours and work to a
younger male who is also junior to me." After referencing the similar
nature of her earlier settled complaint, complainant also claimed that
"I believe that this is another instance of management treating younger
employees more favorabl[y]."
Upon review of the entire record, we first find that, rather than the
above stated claim (1) articulated by the agency, complainant's claim
(1) is most properly framed as claiming discrimination on the bases
of national origin, sex, age, and in reprisal when the agency treated
a younger male employee more favorably than complainant by providing
him a detail assignment during which he worked 40 plus hours per week.
When so appropriately framed, we find that complainant's claim does
not assert breach of the parties June 27, 2007 settlement agreement, and
consequently should be processed under the regulations as a new complaint.
We therefore find that the agency has improperly dismissed complainant's
claim (1) pursuant to 29 C.F.R. � 1614.107(a)(8).1
Concerning claim (2), the Commission finds that complainant's claim was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1). Claim (2)
fails to state a claim under EEOC regulations because complainant
failed to show that she suffered a harm or loss with respect to a term,
condition, or privilege of her employment. See Diaz v. Department of
the Air Force, EEOC Request No. 05931049 (April 21, 1994). Even when
viewed together in a light most favorable to complainant, the event
described does not indicate that complainant has been subjected to
harassment that was sufficiently severe or pervasive to alter the
conditions of her employment. See Cobb v. Department of the Treasury,
Request No. 05970077 (March 13, 1997). Moreover, the alleged agency action
was not of a type reasonably likely to deter complainant or others from
engaging in protected activity.
Accordingly, the agency's decision to dismiss complainant's claim (2)
is AFFIRMED. The agency's decision to dismiss claim (1) is REVERSED,
and complainant's claim, as defined herein, is REMANDED for further
processing in accordance with this decision and the ORDER below.
ORDER
The agency is ordered to process the remanded claim, as defined herein,
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 (K1208)
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 (M1208)
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), 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 (T0408)
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 (Z1008)
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:
February 11, 2009
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__________________
Date
1 We note that while the agency correctly found that claims of breach of a
settlement agreement must be processed pursuant to 29 C.F.R. 1614.504(a),
such a claim is most properly dismissed when asserted as a new complaint
pursuant to 29 C.F.R. 1614.107(a)(1), for failure to state a claim.
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0120083957
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120083957