01995197
02-07-2001
Roberta L. Malone, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Roberta L. Malone v. United States Postal Service
01995197
February 7, 2001
.
Roberta L. Malone,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01995197
Agency No. 4-C-430-0053-99
DECISION
On June 17, 1999 complainant filed a timely appeal with this Commission
from an agency decision pertaining to 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.<1> The Commission
accepts the appeal in accordance with 29 C.F.R. �1614.405.
Complainant contacted the EEO office regarding claims of discrimination
based on �marital status and retaliation because my husband is a letter
carrier in Portsmouth.� Informal efforts to resolve complainant's
concerns were unsuccessful. Subsequently, on April 27, 1999, complainant
filed a formal complaint claiming she was discriminated against when:
on November 30, 1998 she became aware that she was not appointed to the
position of Part-time Flexible City Carrier at the Portsmouth, OH Post
Office because her husband is a carrier at that office.
On May 21, 1999, the agency issued a decision dismissing the complaint
for failure to state a claim. Specifically, the agency determined that
although complainant cites the basis of reprisal, there is no evidence
that complainant has prior EEO activity.
On appeal, complainant argues that she was discriminated on the basis
of sex. Complainant contends that during her interview for the subject
position, she was questioned about her marital status, noting her
husband is a postal carrier. According to complainant she was �not
hired due to [her] sex (female) which is related to [her] marital status
(married) and the fact that [her] husband... was a postal employee at
the Portsmouth facility.� Further, she asserts that the EEO Counselor
�insisted that the block �retaliation' be checked, even though I believed
the discrimination was on the basis of sex (female).�
In response, the agency asserts that complainant is attempting to allege
sex-based discrimination based on her marital status. The agency argues
that the Commission has no jurisdiction over discrimination based on
marital status.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint 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. 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).
EEOC Regulation 29 C.F.R. �1614.103(a) provides that individual and
class complaints of employment discrimination and retaliation prohibited
by Title VII (discrimination on the bases of race, color, religion,
sex and national origin), the ADEA (discrimination on the basis of
age when the aggrieved individual is at least forty years of age),
the Rehabilitation Act (discrimination on the basis of disability), or
the Equal Pay Act (sex-based wage discrimination) shall be processed
in accordance with this part. EEOC Regulation 29 C.F.R. �1614.101(b)
provides that no person shall be subject to retaliation for opposing any
practice made unlawful by Title VII of the Civil Rights Act (Title VII)
(42 U.S.C. �2000e et seq.), the Equal Pay Act (29 U.S.C. �206(d)) or the
Rehabilitation Act (29 U.S.C. �791 et seq.) or for participating in any
stage of administrative or judicial proceedings under these statutes.
A fair reading of the complaint reflects that complainant has claimed
discrimination based in part on marital status. The complaint,
pre-complaint counseling form, and Counselor's Report cites �reprisal
(marital status).� As marital status is not a basis covered by the EEOC
regulations, we find that the agency's dismissal of reprisal (marital
status) as a basis was proper and is AFFIRMED.
However, we note that on appeal complainant asserts that her complaint
is also based on sex. The Commission has held that a complainant may
allege discrimination on all applicable bases, including sex, race,
national origin, color, religion, age, disability, and reprisal, and
may amend her complaint at any time, including at the hearing, to add
or delete bases without changing the identity of the claim. See Sanchez
v. Standard Brands, Inc. 431 F.2d 455 (5th Cir. 1970); Dragos v. United
States Postal Service, EEOC Request No. 05940563 (January 19, 1995).
Here, complainant contends that she was discriminated against due to her
sex when she was not selected for the Part-time Flexible City Carrier
position. Because complainant has alleged an adverse action based on sex,
she has raised a claim within the purview of EEOC regulations.
Accordingly, the agency's decision to dismiss the basis of reprisal was
proper and is hereby AFFIRMED. The agency's decision to dismiss the
complaint based on sex, is REVERSED. The complaint based on sex is
REMANDED to the agency for further processing in accordance with this
decision and the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claim (non-selection
to a part-time flexible city carrier position on the basis of sex) 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 (K0900)
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)(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 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 (T0900)
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 (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
February 7, 2001
__________________
Date
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.