01a53330
07-11-2005
Gwendolyn Y. Stephenson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Gwendolyn Y. Stephenson v. U.S. Postal Service
01A53330
July 11, 2005
.
Gwendolyn Y. Stephenson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A53330
Agency No. 4G-770-0436-04
DECISION
Upon review, the Commission finds that complainant's complaint was
improperly dismissed pursuant to 29 C.F.R. �� 1614.106 and .107(a)(1).
Complainant was employed as a Sales, Service and Distribution
Associate at a Texas facility of the agency. On September 10, 2004,
complainant initiated contact with an EEO Counselor alleging that the
agency discriminated against her on the bases of race (Black) and sex
(female) when a manager (S1) failed to recommend her for a monetary
award, to the union. Complainant noted that the award at issue sought
to compensate employees for serving as a back-up senior mail processor
and that S1 recommended a Hispanic female who has less seniority than she.
The agency and complainant were unable to resolve the matter informally
so, on January 18, 2005, via certified mail, an agency EEO Counselor
(C1) issued complainant a Notice of Final Interview, a Notice of Right to
File Individual Complaint, and an EEO complaint form. The two notices
contained a male's name, rather than complainant's, and an incorrect
agency case number. In addition, the domestic return receipt contained
an incorrect street name for complainant's home address. C1 reissued the
notices, with corrected information, on January 18 via first class mail.
Complainant signed the domestic return receipt for the original notices
and the carrier stamped the date of delivery as January 19. On February
4, 2005, complainant filed a formal EEO complaint alleging that the agency
discriminated against her �when [S1] deliberately left [her] name off
the list which was required by the local [union] in determining what
employees were to be paid monies determined by the National Labor Board.�
In a decision dated March 2, 2005, the agency dismissed complainant's
complaint for failure to file a formal complaint in a timely manner
and failure to state a claim. Specifically, the agency stated that
complainant filed a formal complaint within 16 days of receipt of her
Notice of Right to File, rather than 15 days as required by 29 C.F.R. �
1614.106(b), and that complainant's complaint failed to state a claim
because it lodged a collateral attack on the negotiated grievance
procedure.
Complainant filed a timely appeal with this Commission. On appeal,
complainant stated that she received the original notices on January
21 and that C1 contacted her and apologized for the content errors
on January 24. Complainant added that C1 told her to complete the
formal complaint form although the attached notices were incorrect as
the complaint form would not change. Complainant indicated that the
errors confused her and that C1 should have issued corrected notices via
certified mail and based the filing deadline on her receipt of accurate
notices. Complainant stated that she received accurate notices on March
4, 2005. Regarding the agency's dismissal for failure to state a claim,
complainant stated that the union agreed to issue monetary awards to
the employees the agency identified as entitled to such and that her
claim is against the agency for failing to identify her as an employee
entitled to a monetary award.
EEOC Regulation 29 C.F.R. � 1614.106(b) requires the filing of a written
complaint with an appropriate agency official within fifteen (15)
calendar days after the date of receipt of the notice of the right to
file a formal complaint. EEOC Regulation 29 C.F.R. � 1614.107(a)(2)
provides that the agency shall dismiss a complaint that fails to
comply with the applicable time limits contained in � 1614.106, unless
the agency extends the time limits in accordance with � 1614.604(c).
The record in this case contains evidence that complainant received
the Notice of Right to File on January 19, 2005 via certified mail.
However, the correspondence that she received on that date contained an
incorrect complainant name, agency number, and street name. Further,
the evidence shows that the notice containing complainant's correct
information was sent via first class mail so the record is void of
evidence of when she received it. Thus, the Commission determines that
the Notice of Right to File that complainant received on January 19 was
procedurally defective because the pertinent information it contained
was incorrect and the record does not contain evidence of the date on
which she received an accurate Notice of Right to File. We find that
these circumstances are sufficient to waive the time limit in this case.
Accordingly, we find that the agency improperly dismissed complainant's
complaint for failure to file a formal complaint in a timely manner.
Further, we find that the agency improperly dismissed complainant's
complaint for failure to state a claim as it incorrectly identified
her claim. Complainant stated specifically that her complaint involved
S1's failure to forward her name to the union for a monetary award. The
Commission finds that the complaint states a claim under its regulations.
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). We conclude that complainant is
aggrieved by the agency's failure to identify her as an employee entitled
to a monetary award. Thus, we find that the agency improperly dismissed
complainant's complaint for failure to state a claim.
We find that the agency improperly dismissed complainant's claim for
failure to file a formal complaint in a timely manner and failure to
state a claim. We REVERSE the agency's final decision and REMAND the
matter to the agency for processing in accordance with this decision
and 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
July 11, 2005
__________________
Date