0520130145
10-30-2015
Fonda M.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.
Fonda M.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Request No. 0520130145
Appeal No. 0120122472
Agency No. 4C-440-0031-12
DECISION ON REQUEST FOR RECONSIDERATION
Complainant requests that the Commission reconsider its decision in EEOC Appeal No. 0120122472 (October 3, 2012). EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(c). For the following reasons, Complainant's request to reconsider is GRANTED and the decision in EEOC Appeal No. 0120122472 is VACATED and REMANDED in part.
ISSUES PRESENTED
The issues presented herein are: (1) whether Complainant has demonstrated that the appellate decision involved a clearly erroneous interpretation of material fact or law; and (2) whether the Agency improperly addressed the merits of a portion of Complainant's claim before investigating the matter.
BACKGROUND
This matter initially came before the Commission when Complainant appealed the Agency's decision to dismiss her formal EEO complaint in which she alleged discrimination on the bases of race (African-American), sex (female), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: (1) on November 16, 2011, the vacation selection process was changed; (2) on January 26, 2012, following scheduling of mediation, management created an uncomfortable work environment by mandating that postal vehicles be parked in the rear of the building; and (3) on February 2012, a PS Form 1767, Report of Hazard, Unsafe Conditions or Practice, was left on her desk, along with the VOE survey, and there was no interaction with management regarding completing the survey.
The record reflects that the Agency's decision dismissed claim (1) after concluding that Complainant had raised the matter in a previous complaint that she subsequently withdrew. The record further reflects that the Agency's dismissed claims (2) and (3) after concluding that Complainant failed to state a claim because there was no evidence indicating she was subjected to an adverse employment action or denied any entitlement in relation to a term, condition or privilege of employment. On appeal, the Commission affirmed the Agency's dismissals on those same grounds. See EEOC Appeal No. 0120122472 (Oct. 3, 2012). Complainant thereafter filed this request for reconsideration.
ARGUMENTS ON RECONSIDERATION
On reconsideration, Complainant argues that she withdrew claim 1 because it was filed before the vacation selection process was officially changed. Complainant further argues that once she received official notification from her supervisor that he was changing the vacation selection process, she decided to "reactivate" this aspect of her EEO claim. Regarding claim 2, Complainant argues that she is the only female who has to work early morning hours and be in the dark to retrieve a vehicle. The Agency did not submit arguments on reconsideration.
We note that Complainant raises no argument regarding the Commission's dismissal of claim 3. Therefore, that claim is not addressed in this decision as the Commission exercises its discretion to review only those issues specifically raised on appeal. See EEOC Management Directive for 29 C.F.R. Part 1614, (MD-110), Chap. 9, � IV.A. (Aug. 5, 2015) ("Although the Commission has the right to review all of the issues in a complaint on appeal, it also has the discretion to focus only on those issues specifically raised on appeal.").
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R � 1614.107(a)(1) provides for the dismissal of a complaint which fails to state a claim within the meaning of 29 C.F.R. � 1614.103 or states the same claim that is pending before or has been decided by the agency or Commission. 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, 1614.106(a).
Here, Complainant essentially argues that she withdrew claim 1 after she was informed that the claim could not go forward because it was filed when the decision to change the vacation selection process was merely a proposed action or, in her words, "just hearsay." Complainant's November 7, 2012, Statement on Appeal. Based on this, we find that Complainant did not choose to withdraw claim 1 but instead intended to hold it in abeyance until such time that she received official confirmation of the vacation selection process change. In so doing, we note that Complainant claims that this process change resulted in her going from being first in her unit when choosing her vacation time preference to becoming eighth out of eleven to choose.
Regarding claim 2, the Agency's dismissal stated that Complainant failed to state a claim regarding this aspect of her complaint because management addressed her concerns by allowing her to move her postal vehicle to the front of the building on any afternoon prior to the day on which she would be doing an early morning audit. To the contrary, we find that Complainant has alleged a personal harm to a term, condition, or privilege of her employment with respect to this particular Agency action. To the extent that the Agency explains that management addressed Complainant's concerns, it has inappropriately addressed the merits of the case, which is irrelevant to the procedural determination as to whether or not Complainant has presented a justiciable claim. See Ferrazzoli v. U.S. Postal Serv., EEOC Request No. 05910642 (Aug. 15, 1991).
CONCLUSION
After reconsidering the previous decision and the entire record, the Commission finds that Complainant's request meets the criteria of 29 C.F.R. � 1614.405(c); her request is therefore GRANTED in part. The decision of the Commission in Appeal No. 0120122472 and the Agency's final decision are VACATED with respect to claims 1 and 2. Those claims are hereby REMANDED in accordance with this decision and the Order below. There is no further right of the parties to appeal this decision to the Commission.
ORDER (E0610)
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 (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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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. 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.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
Oct. 30, 2015
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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0520130145
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0520130145