0120113983
12-26-2012
Angela S. Sparrgrove, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.
Angela S. Sparrgrove,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120113983
Agency No. 4E500007410
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated August 15, 2011, 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 City Letter Carrier at the Agency's Post Office in Waterloo, Iowa.
On August 26, 2010, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of sex (female) when, in 2010, she was told she could not report to work until she was in full uniform. At the time, Complainant was pregnant and asserted that because the Agency had no maternity uniform, she should have been permitted to wear alternative clothing that would have accommodated her pregnancy. She further alleged that other employees were permitted to work out of full uniform.
On November 30, 2010, the Agency dismissed the complaint for failure to state a claim, reasoning the Complainant failed to establish that she was aggrieved. Complainant appealed the dismissal to this Commission.
On May 20, 2011, we issued a decision in EEOC Appeal No. 0120111286, reversing the dismissal and remanding the complaint for further processing in compliance with the following Order:
The Agency is ordered to process the remanded claims 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 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.
On remand, however, the record does not establish that the Agency conducted an investigation as ordered in EEOC Appeal No. 0120111286. While the record in the instant matter contains several pages from an affidavit obtained from Complainant, there is no record that an investigation was completed or that an investigative report was drafted or issued.
Instead, on August 15, 2011, the Agency again issued a decision dismissing the complaint, this time on the basis that that Complainant's initial EEO counselor contact was purportedly untimely made.
The instant appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a) provides that an agency may dismiss a complaint on procedural grounds prior to a request for a hearing in a case. However, in this case, the Agency's previous dismissal decision was overturned by EEOC and the matter was remanded for an investigation and further processing. The record provided to us in the instant appeal does not support a finding that the Agency is in compliance with our previous Order. Under the facts of this case, the Agency was not authorized to issue a decision procedurally dismissing the complaint until after it conducted an investigation and issued an investigative report pursuant to 29 C.F.R. � 1614.108, but before a hearing was requested.1 The record contains no evidence that it did so. Instead, the Agency appears to have issued another dismissal on different grounds without the investigation ordered in our previous decision in this case. Therefore, we find that the Agency has failed to substantiate the basis for its final decision. See Marshall v. Dep't of the Navy, EEOC Request No. 05910685 (Sept. 6, 1991).
Accordingly, the Agency's August 15, 2011 dismissal decision is REVERSED and the complaint if REMANDED to the Agency pursuant to the following Order.
ORDER
The Agency shall acknowledge to the Complainant that it has received the remanded complaint within thirty (30) calendar days of the date this decision becomes final.
The Agency is ordered to investigate the complaint pursuant to 29 C.F.R. � 1614.108 (unless it has already completed such an investigation), and shall issue to Complainant a copy of the investigative file and notify Complainant of the appropriate rights within ninety (90) calendar days of the date this decision becomes final. 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 (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
December 26, 2012
__________________
Date
1 In the event a hearing was requested, the Agency could not issue a dismissal on its own, but had to make a motion to dismiss before the administrative judge.
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0120113983
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120113983