01A34707_r
03-12-2004
Evette Pauls, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Evette Pauls v. United States Postal Service
01A34707
March 12, 2004
.
Evette Pauls,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A34707
Agency No. 4A-100-0149-02
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated July 28, 2003, 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.
Following complainant's initiation of the EEO complaint process on the
captioned complaint, the EEO Dispute Resolution Specialist prepared
an EEO Dispute Specialist's Inquiry Report. Therein, the EEO Dispute
Specialist identified the following discrimination claims raised by
complainant during EEO counseling:
on June 10 - 13, 2002, complainant was given leave without pay (LWOP);
her request was denied for two days leave on June 25 and 26, 2002;
on or about June 26, 2002, an agency Manager told complainant that she
did not qualify for leave under the Family Medical Leave Act (FMLA);
on November 4, 2002, complainant was denied the right to work overtime,
although her name was on the overtime desired list; and after she had
an on-the-job injury on November 27, 2002, a Supervisor never gave her
a copy of the accident report.
In the instant formal EEO complaint, filed on February 25, 2003,
complainant alleged that she was subjected to discrimination on the basis
of sex and in reprisal for prior protected activity when on June 3, 2002,
she called in and requested sick leave under the FMLA, but that she was
informed two weeks later by her Supervisor that the Station Manager was
not accepting the FMLA documents.<1>
In a final decision dated July 28, 2003, the agency dismissed the
complaint for failure to state a claim. The agency determined that
complainant's complaint was comprised of the claim that on June 3, 2002,
she requested sick leave under the FMLA and was informed two weeks later
that the agency Manager was not accepting any FMLA documents. The agency
found that complainant failed to show that she suffered any loss as
a result of the alleged discriminatory comment by the agency Manager.
The agency further determined that complainant's request for FMLA sick
leave on June 3, 2002, was approved.
On appeal, complainant contends that she was out of work for three
weeks plus one day during the relevant period; and that she was charged
as Absent Without Leave. Complainant further contends that she was
neither paid nor approved 72 hours of FMLA. Furthermore, complainant
states �I have suffered, retaliation, harassment by not being allowed
to work overtime after tour or duty like the others in the collection
department...I have submitted the appropriate form 3971 to my [immediate
supervisor] on numerous occasions requesting that the FMLA be applied to
the situation.� Moreover, complainant contends that she never received
an appropriate written response concerning her FMLA requests.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,
.106(a). The Commission's federal sector case precedent has long defined
an "aggrieved employee" as one who suffers a present harm or loss with
respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
As a threshold matter, the Commission determines that complainant
abandoned the claims, as reflected in the EEO Counselor's Report,
regarding denial of the right to work overtime and the agency's
purported failure to provide her a copy of an accident report following
an on-the-job injury in November 2002 These claims were raised during
counseling; however, complainant failed to include them in her formal
complaint. The Commission has held that a complainant's failure to
include claims in her formal complaint that were raised during EEO
counseling constitutes abandonment of those claims. See Remlinger
v. Department of the Navy, EEOC Appeal No. 01933756 (October 1, 1993).
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 alleged 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, a fair reading of complainant's complaint reflects that complainant
claimed that on June 3, 2002, she requested leave under the FMLA, but
was informed several weeks later that such leave was not forthcoming,
as an agency Station Manager was not �[accepting] FMLA documents.�
In its final decision, the agency stated that complainant's request
for leave pursuant to the FMLA had been approved; however, the record
does not support this determination. Moreover, on appeal, complainant
asserts that no leave pursuant to the FMLA had ever been approved.
Complainant's claim is sufficient to render her an aggrieved employee.
Because complainant alleged that the adverse action was based on the
bases of sex and in reprisal for prior protected activity, she has raised
a claim within the purview of the EEOC regulations.
Accordingly, the agency's final decision dismissing complainant's
complaint is REVERSED. The complaint is REMANDED to the agency for
further processing in accordance with the ORDER below.
ORDER (E0900)
The agency is ordered to process the remanded claims 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 (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
March 12, 2004
__________________
Date
1 On the formal complaint form, complainant
identified solely sex as the basis; however, the record contains a
letter from complainant to an agency EEO official dated November 15,
2002, wherein she requested that reprisal be added as a basis.