Ana Brindusescu, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 11, 2009
0120083957 (E.E.O.C. Feb. 11, 2009)

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