01a53464
07-19-2005
Darrilyn A. Smith, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Darrilyn A. Smith v. United States Postal Service
01A53464
July 19, 2005
.
Darrilyn A. Smith,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A53464
Agency No. 4C-450-0010-05
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision dated March 28, 2005, dismissing her formal 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.
In December 2004, complainant initiated EEO Counselor contact. An EEO
Dispute Resolution Specialist's Inquiry Report indicates that complainant
alleged discrimination when on December 24, 2004, an agency Manager
instructed complainant to provide her name and telephone number to be
in �on call� status for that workday, but that complainant was not
scheduled to work that day, and she did not receive pay for the �on
call� assignment.
Complainant also underwent EEO counseling on the matter that the agency
Manager informed complainant that if the PTF Carriers did not show up
for work on December 25, 2004, as requested, complainant would have
a �real� problem when complainant returned from vacation, which was
scheduled to begin on December 27, 2004. The EEO Counselor stated that
the Manager claimed that complainant was previously instructed to inform
two PTF Carriers that they were to report to work on December 25, 2004;
that complainant did not so inform the PTF Carriers; that the Manager
telephoned complainant early on December 25, 2004, to inform her of her
inaction; and that the Manager had to report to work on December 25,
2004, due to complainant's purported failure to follow instructions.
Informal efforts to resolve complainant's concerns were unsuccessful.
On March 16, 2005, complainant filed the instant formal complaint,
claiming that she was the victim of unlawful employment discrimination
on the bases of race and in reprisal for prior protected activity.
On March 28, 2005, the agency issued a final decision. Therein, the
agency determined that complainant's complaint was comprised of two
claims, that were identified as follows:
On December 24, 2004, complainant was required to be on an �on call�
status for work; and
Complainant was threatened with unspecified discipline if the PTF Carriers
failed to show up for work on December 25, 2004.
The agency dismissed the instant complaint for failure to state a claim.
Claim (1)
The only proper questions in determining whether a claim is within the
purview of the EEO process are (1) whether the complainant is an aggrieved
employee and (2) whether she has claimed employment discrimination covered
by the EEO statutes. An employee is "aggrieved" if she has suffered
direct and personal deprivation at the hands of the employer. See Hobson
v. Department of the Navy, EEOC Request No. 05891133 (March 2, 1990).
Here, complainant claimed that she was required to be in an �on call�
status on December 24, 2004, and that she was not compensated for being
�on call.� Complainant's claim is sufficient to render her an aggrieved
employee. Because complainant alleged that the adverse action was based
on race and in reprisal for prior protected activity, she raised a claim
within the purview of the EEOC regulations.
The agency's dismissal of claim (1) is REVERSED. Claim (1) is REMANDED
to the agency for further processing in accordance with the ORDER below.
Claim (2)
The record does not reflect that complainant was disciplined when the PTF
Carriers failed to show up for work on December 25, 2004. The Commission
determines that complainant has not shown a personal loss or harm
regarding a term, condition or privilege of her employment. Accordingly,
the agency's dismissal of this claim was proper and is AFFIRMED.
ORDER (E0900)
The agency is ordered to process the remanded claim (claim (1)) in
accordance with 29 C.F.R. � 1614.108. The agency shall acknowledge to
the complainant that it has received the remanded claim 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 (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 (T0900)
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 (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
July 19, 2005
__________________
Date