01986986
02-04-2000
Marlo A. Bullard, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Marlo A. Bullard, )
Complainant, )
)
v. ) Appeal No. 01986986
) Agency No. 4-H-330-0286-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Complainant filed an appeal with this Commission from a final decision of
the agency concerning her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. �2000e et seq., and Section 501 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. 791 et seq.<1> The final agency decision was issued
on September 15, 1998. The appeal was postmarked September 21, 1998.
Accordingly, the appeal is timely (see 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter cited as 29 C.F.R. �1614.402(a)), and
is accepted in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue presented on appeal is whether the agency properly dismissed
the complaint on the grounds of failure to state a claim.
BACKGROUND
Complainant initiated contact with an EEO Counselor on March 9, 1998.
On May 12, 1998, complainant filed a formal EEO complaint wherein she
alleged that she was subjected to discriminatory harassment on the bases
of her race (black), sex (female), national origin (African-American),
and physical disability (left ankle). The agency defined the incident in
the complaint as being that on March 9, 1998, complainant was questioned
concerning a job-related injury.
In her complaint, complainant claimed that on March 9, 1998, the Manager
asked her about the incident she had with a dog on February 5, 1998, when
she would return to full duty, the date of her next medical appointment,
and if the examining physician was her physician or an agency physician.
According to complainant, on March 11, 1998, the day after her medical
appointment, the Manager asked her why her CA-17 form listed zero hours
for driving. Complainant claimed that the Manager stated that he would
inquire of her physician as to the restrictions and why she was still
on limited duty. Complainant further claimed that on March 11, 1998, a
Supervisor went to her physician's office and manipulated her physician
into changing her CA-17 form to reflect that she could perform driving
duties for two hours and to cross our the prior indication that she
could only perform duties while sitting down. According to complainant,
the agency's actions have resulted in her being forced to stand and case
beyond her physical limitations. Complainant claimed that her ankle has
not had an opportunity to heal, and that it remains swollen and painful.
In its final decision, the agency dismissed the complaint on the
grounds that it failed to state a claim. The agency determined that
complainant was not subjected to harassment merely because she was
questioned concerning a job-related injury.
On appeal, complainant maintains that she was not reasonably accommodated
by the agency and as a result, she has sustained an exacerbation of
her ankle injury. Complainant argues that the agency manipulated her
physician into changing the notation on her original CA-17 form that
her duties not involve walking.
ANALYSIS AND FINDINGS
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. �1614.107(a)(1)) provides, in relevant part, that
an agency shall dismiss a complaint, or portion thereof, 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. 64 Fed. Reg. 37,644,
37,656 (1999)(to be codified and hereinafter referred to as 29
C.F.R. �1614.103); �1614.106(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 22, 1994).
In the present case, contrary to the agency's interpretation of
the complaint as regarding merely the March 9, 1998 questioning of
complainant about her on the job injury, complainant claimed that
the Manager also questioned her two days later and that a Supervisor
subsequently manipulated complainant's physician into changing her CA-17
form with regard to her driving and walking capabilities. Complainant
claims that as a result of these actions, she has not been reasonably
accommodated as to her physical disability and her ankle injury has
been exacerbated. We find that the agency's actions relate to a term,
condition, or privilege of complainant's employment and, therefore,
the complaint states a valid claim. Accordingly, the agency's decision
to dismiss the complaint on the grounds of failure to state a claim
was improper and is REVERSED. This complaint, as clarified herein,
is hereby remanded for further processing pursuant to the ORDER below.
ORDER (E1199)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 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 an
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 (K1199)
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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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
(R1199)
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:
February 4, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.