01A04799_r
09-24-2001
Itanion M. Jones, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Itanion M. Jones v. United States Postal Service
01A04799
September 24, 2001
.
Itanion M. Jones,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A04799
Agency No. 4F-907-0103-00
DECISION
On April 17, 2000, complainant filed a formal EEO complaint wherein
she claimed that she was discriminated against on the bases of her sex
(female) and in reprisal for her previous EEO activity under Title VII
when on February 24, 2000, she was issued a proposed letter of warning
in lieu of a time-off suspension, charging her with unsatisfactory work
performance/failure to follow instructions/entering the first floor
(work area) of the downtown station without authorization.
In its decision dated June 8, 2000, the agency dismissed the complaint
pursuant to 29 C.F.R. �1614.107(a)(5), on the grounds that the complaint
alleged that a proposal to take a personnel action is discriminatory.
The agency determined that at the time that complainant was issued a
notice of right to file individual complaint, April 4, 2000, a decision
had not been rendered on the proposal to issue complainant a letter
of warning in lieu of a seven calendar day suspension. The agency
stated that complainant was not aggrieved as management had simply
advised complainant of the intent to issue the letter of warning unless
information is developed mitigating otherwise.
On appeal, complainant argues that the proposed letter of warning is
in her official personnel file. Complainant maintains that a proposed
action should not be in the file as it could be used against her.
In response, the agency asserts that complainant does not claim that a
decision was ever rendered on the proposed action or that complainant
requested that it be removed from her official personnel file and the
request was denied. The agency asserts that complainant does not claim
that she has been harmed by the proposed action being in her file,
but rather that the proposed action could be used against her.
The regulation set forth at 29 C.F.R. � 1614.107(a)(5) provides, in part,
that the agency shall dismiss a complaint that alleges that a proposal to
take a personnel action, or other preliminary step to taking a personnel
action, is discriminatory.
In the present case, complainant received a proposed letter of warning in
lieu of a time-off suspension, which was placed in her official personnel
file for an indeterminate length of time. The existence of such a record
in complainant's file clearly would impact her employment and render her
aggrieved. Therefore, complainant has claimed discrimination from an act
that was more than a proposal to take a personnel action. See Jackson
v. Central Intelligence Agency, EEOC Request No. 05931177 (June 23, 1994)
(noting that �if [a performance improvement plan] is not recorded in an
official file of the complainant, her complaint was properly dismissed.�).
See also Wilson v. Department of the Navy, EEOC Appeal No. 01952752
(February 7, 1996) (finding that whether a notification of acceptable
performance is properly dismissed as a proposed action turns on whether
the notification was placed in complainant's official personnel file).
Accordingly, the agency's dismissal of the complaint was improper and
is REVERSED. This complaint is hereby REMANDED pursuant to the Order
set forth below.
ORDER (E0900)
The agency is ordered to process the remanded claim 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 (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
September 24, 2001
__________________
Date