0120072519
09-19-2007
Carla H. Hill, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Carla H. Hill,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120072519
Agency Nos. 4J604001604; 4J604010102
Hearing No. 210200400152x
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated April 2, 2007, dismissing her complaints 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.1
On June 7, 2006, and amended on May 8, 2007, complainant filed a civil
action (Civil Action No. 06C 3105) in the United States District
Court for the Northern District of Illinois, Eastern Division.
The agency determined that "the issues raised in [complainant's]
civil action included the same issues [complainant] raised in these two
administrative complaints" and dismissed her complaints pursuant to 29
C.F.R. � 1614(a)(3). For the following reasons, we vacate the agency's
action and remand the complaints to the agency for issuance of a final
decision on the merits of complainant's claims.
The issues set forth in complainant's complaints which were accepted by
the agency are as follows:
Date Dates of event Bases Issues2 7/1/2002
5/14/2002 race (black)
color (black)
sex (female)
age (DOB 9/30/1959)
reprisal 1. interrogated & harassed about being late 4/20/2004
9/30 to 12/22/2003 race (black)
sex (female)
disability (back)
reprisal 2. not given light duty assignment
3. told not to talk, no skipping lunch, sit without work, denied leave
4. ordered to take fitness exam
5. moved to light duty and not given full day's work (8 hours) 6/16/2004
5/18/2004 race (black)
sex (female)
disability (back)
reprisal 6. told to go home because no light duty work available and
denied request to remain
In her appeal, complainant asserted that her civil action, as
affirmed in her amendment, addressed a third complaint, i.e., Complaint
No. 4J604008305, not the two complaints at issue in this case. In that
third complaint, complainant identified four incidents based on race,
sex, color, age, and reprisal that took place in late 2004 to early
2005, when (a) she was subjected to harassment; (2) her fianc� was
subjected to harassment: (3) her supervisor sexually harassed her by his
screaming and yelling; and (4) her supervisor instructed her to deliver
priority mail and then revoked the instruction. The agency dismissed
the third complaint on the grounds of failure to state a claim, and, on
appeal, the Commission affirmed the agency's action.3 See 29 C.F.R. �
1614.107(a)(3).
In her civil action and amendment, complainant identified the following
issues: failure to promote; harassment; reprisal; termination of
fianc�; physical assault; denial of overtime; days off; cut in hours;
and assignment to window clerk position (but see fn. 2). In remedy,
she sought, among other things, promotion; assignment to a window clerk
position; re-employment for her fianc�; reasonable accommodation; an
end to the alleged harassment and physical abuse; and $5,000,000.00.
In support of its decision herein, the agency pointed to certain
language in her civil action. Specifically, it relied on the portions
that concerned the agency's failure to assign or promote complainant to
a window clerk position. In addition, the agency noted several pages
of a lengthy attachment to the civil action that also discussed the
transfer to the clerk position. The Commission, however, had determined
in its May 2006 decision in EEOC Appeal No. 01A60626, that complainant's
claim that she was denied the window clerk position in August 2005,
"must be viewed as a separate complaint," and she was directed to seek
EEO counseling if she desired to pursue it. See fn. 2, supra. We find
that complainant's claim that she was denied a position was not part
of any issue raised by her in her complaint; therefore, the agency's
reliance on complainant's references to the clerk position are misplaced
and cannot justify its dismissal action.
For all of the above reasons, we find that the agency improperly dismissed
the complaints at issue herein. Because complainant acceded to dismissal
of the hearing, we remand this matter to the agency for issuance of a
final agency decision.
CONCLUSION
Accordingly, the agency's decision is vacated. The agency is directed
to comply with the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
this decision and issue a final agency decision pursuant to 29 C.F.R. �
1614.110(b). The agency shall acknowledge to the complainant that it
has received the remanded claims within ten (10) calendar days of the
date this decision becomes final, and issue its decision within sixty
(60) days thereafter. A copy of the agency=s letter of acknowledgment
to complainant and a copy of the decision must be sent to the Compliance
Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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 (M0701)
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 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 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 (R0900)
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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
___9/19/07_______________
Date
1 The complaints at issue herein are before us from a decision
invalidating a Settlement Agreement (SA) between the parties. EEOC Appeal
No. 01A60626 (May 17, 2006), request to reconsider den., EEOC Request
No. 05A60862 (February 2, 2007). The parties entered into the SA while
the complaints were pending hearing before an EEOC Administrative Judge
(AJ).
2 We note, in addition, that complainant asserted that she was denied a
transfer to the position of window clerk. In the Commission's decision
invalidating the SA, complainant was directed to contact an EEO counselor
should she desire to pursue this claim. The record does not indicate
whether she did so; however, it is not an issue within the complaints
at issue herein.
3 EEOC Appeal No. 01A54488 (October 6, 2005), request to reconsider den.,
EEOC Request No. 05A60306 (March 16, 2006).
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0120072519
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120072519