0120111231
12-16-2011
Mary June Bjork, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Mary June Bjork,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120111231
Agency No. 1G761000311
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated December 2, 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.
Upon review, the Commission finds that Complainant's complaint was
improperly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1) for failure
to state a claim.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Distribution Clerk at the Agency’s P&DC facility in Lubbock, Texas.
On November 17, 2010, Complainant filed a formal complaint alleging
that the Agency subjected her to discrimination on the bases of sex
(female) and reprisal for prior protected EEO activity under Title VII
of the Civil Rights Act of 1964 when, on October 4 and 15, 2010, a bid
was taken away from her. In her pleadings, Complainant states:
In the past years as long as I can remember, only women and four
that know of, have been given negative employment actions and no men.
In this case management is maintaining my negative job employment status
by denying me the job bids (BID# 95555497, 70069862) that I won, where I
would have returned to active duty. This is harassment/retaliation for
prior EEO activity and gender (sex) related in that this has recently
only happened to other women and not men.
In its final decision, the Agency indicated that Complainant quite
specifically alleges discrimination when she was the successful bidder
on two jobs (#95555497 and #70069862) which were taken away from her in
accordance with the Memorandum of Understanding (MOU) (dated September 1,
1987) between the American Postal Worker's Union and the Postal Service.
According to the Agency, the proper forum for Complainant to have raised
her challenge to decisions made with regard to the application of the
above referenced MOU would have been the grievance procedure for the
National Agreement. The Agency asserts it is inappropriate to now
attempt to use the EEO process to seek collateral enforcement of a
process governed by the negotiated National Agreement.
ANALYSIS AND FINDINGS
Despite the Agency’s findings to the contrary, Complainant has alleged
an injury or harm to a term, condition, or privilege of employment for
which there is a remedy. See Diaz v. Dep’t of the Air Force, EEOC
Request No. 05931049 (April 21, 1994). Further, while the Commission
has held that an employee cannot use the EEO complaint process to lodge a
collateral attack on another proceeding, the record shows that Complainant
is not specifically challenging the Agency’s grievance process or its
MOU, but instead the Agency's purported, discriminatory application of
its MOU by its management. Thus, Complainant states a claim and is not
collaterally attacking the grievance process.
Moreover, the Agency’s argument concerning its compliance with the terms
of the MOU when it removed Complainant’s bid improperly addresses the
merits of Complainant’s complaint without a proper investigation as
required by the regulations. We find that the Agency’s articulated
reason for the action in dispute is irrelevant to the procedural issue of
whether she has stated a justiciable claim under Title VII. See Osborne
v. Dep’t of the Treasury, EEOC Request No. 05960111 (July 19, 1996);
Lee v. U.S. Postal Serv., EEOC Request No. 05930220 (Aug. 12, 1993);
Ferrazzoli v. U.S. Postal Serv., EEOC Request No. 05910642 (Aug. 15,
1991).
Accordingly, the Agency's final decision dismissing Complainant's
complaint is REVERSED and the complaint is hereby REMANDED to the
Agency for further processing in accordance with this decision and the
Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claim 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 (R0610)
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 (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 16, 2011
__________________
Date
2
0120111231
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120111231