Angela Tucker, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 30, 2009
0120090747 (E.E.O.C. Mar. 30, 2009)

0120090747

03-30-2009

Angela Tucker, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Angela Tucker,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120090747

Agency No. 4H350012208

DECISION

Complainant filed a timely appeal with this Commission from the

agency's decision dated November 10, 2008, dismissing her complaint

of unlawful employment discrimination in violation of Section 501 of

the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29

U.S.C. � 791 et seq. Upon review, the Commission finds that complainant's

complaint was improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1)

for failure to state a claim.

At the time of the events at issue, complainant was employed by the agency

as a Rural Carrier Associate at the Fairhope, Alabama Post Office.

In her EEO complaint, complainant alleged that she was subjected

to discrimination on the basis of disability (back, foot and ankle,

genetic medical condition) when she was not paid full compensation for

the evaluated route on July 3, 2008,1 and when, on July 25, 2008, she

was informed that mail would no longer be curtailed.2

The agency dismissed the complaint for failure to state a claim, arguing

that complainant had been properly paid for the portion of the route she

actually worked, and that the decision concerning curtailing mail was

one solely within management's discretion. The instant appeal followed.

After a review of the agency's final decision, the Commission finds that

the agency has addressed the merits of complainant's complaint without

a proper investigation as required by the regulations. We find that the

agency's articulated reasons for the actions in dispute-that complainant

had been properly paid for the portion of the route she actually worked,

and that the decision concerning curtailing mail was one solely within

management's discretion-goes to the merits of complainant's complaint,

and is irrelevant to the procedural issue of whether she has stated

a justiciable claim under Title VII. See Osborne v. Department of the

Treasury, EEOC Request No. 05960111 (July 19, 1996); Lee v. United States

Postal Service, EEOC Request No. 05930220 (August 12, 1993); Ferrazzoli

v. United States Postal Service, EEOC Request No. 05910642 (August 15,

1991). The record indicates that complainant has alleged that other

employees were treated differently by management. As such, complainant

has alleged an injury or harm to a term, condition, or privilege of

employment for which there is a remedy. See Diaz v. Department of the

Air Force, EEOC Request No. 05931049 (April 21, 1994).

Accordingly, the agency's final decision dismissing complainant's

complaint is reversed. The complaint is hereby remanded to the agency for

further processing in accordance with this decision and the Order below.

ORDER (E0408)

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.

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 (R0408)

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 (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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

March 30, 2009

__________________

Date

1 Apparently, this issue relates to whether complainant is entitled to

full compensation for her route, or whether, if she receives assistance

from another employee, she is only entitled to payment for that portion

of the route that she personally worked.

2 Curtailing the mail appears to refer to a decision to cut her

delivery route short in order to leave early such as to attend a medical

appointment.

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0120090747

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120090747