01A04319
08-29-2001
Patricia A. Gruver, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Patricia A. Gruver v. United States Postal Service
01A04319
August 29, 2001
.
Patricia A. Gruver,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 01A04319
Agency No. 1-H-324-0026-00
INTRODUCTION
Complainant timely initiated an appeal to the Commission of a final
agency decision dismissing her allegations of discrimination in violation
of Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. � 2000e et seq. for failure to state a claim.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed complaint
for failure to state a claim.
BACKGROUND
Complainant filed a formal complaint with the agency on April 11, 2000,
alleging that she was the victim of unlawful employment discrimination
on the bases of sex (female) and retaliation (prior EEO activity)
when, on or about January 10, 2000, complainant was injured during a
job-related accident. Complainant alleges her injury was caused by
defective machinery, but she received a PS 1769 Form from the agency
charging that her injury was due to her own fault and that she was an
unsafe worker. In addition, on January 25, 2000 complainant's supervisor
gave complainant an official discussion regarding the accident that
occurred on January 10, 2000.
In her formal complaint, complainant claims that male co-workers were
issued no discipline for similar work-related at-fault injuries.
Complainant asks that the official job discussion be expunged from
her employment record, that she be treated fairly and that the PS
1769 be corrected. On May 4, 2000 the agency issued a final decision
dismissing complainant's complaint for failure to state a claim under
29 C.F.R. �1614.103 or 1614.106(a), as she had only been issued an
official discussion.
ANALYSIS AND FINDINGS
In determining whether a complaint states a claim, the proper inquiry
is whether the conduct if true would constitute an unlawful employment
practice under the EEO statutes.� 29 C.F.R. �1614.107(a)(1). Prior to
dismissal, the agency must consider all allegations together in the light
most favorable to complainant. The agency must address complainant's
allegations if she has suffered direct, personal deprivation at the
hands of the employer. Complainant has thus suffered when the agency's
act causes some concrete effect on her employment status. Quinones
v. Department of Defense, EEOC Request No. 05920051 (March 12, 1992).
The Commission has held that official discussions alone do not render
an employee aggrieved. See Gafforino v. United States Postal Service,
EEOC Request No. 05910847 (December 30, 1991). Nevertheless, complainant
claims disparate treatment in that similarly situated male co-workers
did not receive any discipline from the agency when they were involved in
own-fault job-related injuries, while she received an official discussion.
Moreover, a fair reading of the record in this case reflects that the
official discussion incident is to be viewed in the context of other
matters raised in the complaint, i.e., complainant's safety record
was wrongly tarnished by the agency's refusal to admit that defective
machinery caused her injury, despite a statement from the servicing
mechanic, and that due to false information contained in the safety
report, complainant was given the official job discussion. Based on the
foregoing, we find that the complaint states a claim. A review of the
dismissed claim persuades the Commission that, when considered together
and treated as true, it could be sufficient to state a claim of sex
discrimination and/or reprisal. Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997). Accordingly, the agency's
final decision dismissing the complaint for failure to state a claim
is REVERSED. The complaint is hereby REMANDED for further processing in
accordance with the Order below.
DECISION
Upon review, the Commission finds that complainant's complaint
was improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1).
Complainant has shown an injury or harm to a term, condition, or privilege
of employment. Accordingly, the agency's final decision dismissing
complainant's complaint for failure to state a claim is REVERSED.
The complaint is hereby REMANDED for further processing in accordance
with 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 (M0900)
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
August 29, 2001
__________________
Date