0120111144
12-20-2011
Karen Y. Spears, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Karen Y. Spears,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120111144
Agency No. 1H301006610
DECISION
Complainant filed a timely appeal1 with this Commission from the Agency's
decision dated October 19, 2010, 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Mail Handler at the Agency’s P&DC facility in Atlanta, Georgia.
On September 16, 2010, filed a formal complaint alleging that the Agency
subjected her to discrimination on the bases of race (“of color”),
disability (bursitis), and age (over 40). The Agency identified the
claims as: (1) from April 24, 2009 to January 9, 2010, she was complained
about and threatened about her work speed; (2) on August 5 and 11, 2009,
in meetings and discussions held prior to her shift, it was reported of
management’s intentions of getting rid of employees over 40; and (3)
on January 10, 2010, she was injured on the job and was not provided
a CA-1 form and not afforded medical attention. The Commission notes
that in her formal complaint, Complainant also raised the matter of
being issued a removal letter in June 2010, which the Agency failed to
recognize as part of the complaint.
The Agency dismissed the complaint, as it characterized it (without the
removal claim), pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to
state a claim. The instant complaint followed.
ANALYSIS AND FINDINGS
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). When the complainant does not
allege he or she is aggrieved within the meaning of the regulations,
the agency shall dismiss the complaint for failure to state a claim
pursuant to 29 C.F.R. § 1614.107(a)(1).
With regard to claims (1) and (2), the Agency correctly determined that
Complainant has not alleged that she was personally aggrieved by these
matters. With regard to claim (3), to the extent that Complainant is
raising matters related to Office of Worker’s Compensation Programs
claims and the failure to provide her with forms, such matters must be
raised with the Department of Labor. The Commission has held that an
employee cannot use the EEO complaint process to lodge a collateral
attack on another proceeding. See Wills v. Dep’t of Def., EEOC
Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv.,
EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv.,
EEOC Request No. 05930106 (June 25, 1993). Accordingly, we affirm the
Agency’s dismissal of these three claims.
However, the Agency failed to recognize that Complainant also
timely raised the matter of her removal in her formal complaint. The
Commission finds that a claim regarding a removal states a claim under
the EEOC regulations. See Diaz v. Dep’t of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
Accordingly, the Agency's final decision dismissing Complainant's
complaint is affirmed in part, and the matter of Complainant’s removal
is REMANDED for further processing as set forth in the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claim concerning
Complainant’s removal in accordance with 29 C.F.R. § 1614.108 et seq.
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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (T0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
December 20, 2011
__________________
Date
1 The Commission notes that the appeal form and the “Privacy Act
Statement” used by Complainant carry an outdated address of the
Commission. The Agency is cautioned as to using documents with the
Commission’s outdated address.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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