0120091701
07-13-2009
Ruthann Storr, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ruthann Storr,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091701
Agency No. 1F-921-0033-08
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated November 6, 2008, 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.,
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq., and the Equal Pay Act of 1963, as amended,
29 U.S.C. � 206(d) et seq. In her complaint, complainant alleged that
she was subjected to discrimination on the bases of race (European),
sex (female), color (White), and age (DOB: December 10, 1941) when:
1. She had been denied higher level pay for performing ramp duties while
a male co-worker was paid more;
2. After sustaining an on-the-job injury in December 2007, complainant
was denied work and forced to use leave without pay;
3. She has been denied privileges afforded to others in that she is not
permitted to park her van by the tent, she is forced to in the lunch room,
and her supervisor raises his voice every time complainant talks to him;
4. On or about August 24, 2008, complainant was told she should think
about retiring, he suggested that she take all of her leave and ask for
LWOP, and he suggested that she rent a room somewhere in Fiji; and
5. Complainant's requests for representation were ignored.
The agency dismissed the complaint noting that complainant had contact
the EEO office on February 19, 2008, regarding events (1) to (3).
That was designated as Agency No. 1F-921-0015-08. Complainant was
provided with a notice of right to file in this matter; however, the
agency indicated that complainant did not file a formal complaint.
Subsequently, complainant contacted the EEO office alleging all the
events indicated above. This new complaint was designated as Agency
No. 1F-921-0033-08. Complainant filed her formal complaint on October 7,
2008, on Agency No. 1F-921-0033-08. Since complainant failed to file
a formal complaint in Agency No. 1F-921-0015-08, the agency believed
that she had abandoned that claim. Further the agency noted that the
remaining events failed to state a claim of harassment. As such, the
agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1).
Complainant appealed. The agency responded stating it stands on its
dismissal.
Upon review of the record, we find that the agency failed to properly
process complainant's informal matters. The record shows that complainant
had contacted the agency with regard to Agency No. 1F-921-0015-08.
While that matter was within the EEO Office, complainant contacted the
EEO Office regarding additional events on August 28, 2008. Rather than
including the "new" events in Agency No. 1F-921-0015-08, the agency
assigned it a new complaint number, namely, Agency No. 1F-921-0033-08.
The record shows that complainant was provided with a notice of right to
file for Agency No. 1F-921-0015-08 which was mailed on September 24, 2008.
The agency included copies of the return receipt forms indicating that
it was received by complainant on October 2, 2008. The record also
includes a notice of right to file signed by complainant in which the
typed complaint number, Agency No. 1F-921-0015-08, has been crossed out
and written Agency No. 1F-921-0033-08. This notice of right to file is
signed by the EEO counselor on September 24, 2008. The agency failed
to provide evidence that this notice of right to file was mailed to
complainant. Finally, the record shows that complainant file a formal
complaint on October 7, 2008. The formal complaint, like the notice
of right to file, has typed Agency No. 1F-921-0015-08, however, someone
crossed that number out and replaced it with Agency No. 1F-921-0033-08.
The agency asserted that Agency No. 1F-921-0033-08 should be dismissed
for it was previously raised in Agency No. 1F-921-0015-08 but abandoned
by complainant. The regulation set forth at 29 C.F.R. � 1614.107(a)(1)
provides that the agency shall dismiss a complaint that states the
same claim that is pending before or has been decided by the agency
or Commission. Upon review, we find that the agency has not shown that
complainant abandoned the matter raised in Agency No. 1F-921-0015-08.
The agency failed to amend the issues raised by complainant. Instead,
the agency confused the process by issuing a notice of right to sue on
Agency No. 1F-921-0015-08 and at some point changing the number on the
complaint to Agency No. 1F-921-0033-08. Therefore, we find that the
agency dismissal of the complaint was inappropriate.
The agency then looked at the remaining claim of harassment. The agency
dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1).
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). Taking the complaints as a
whole, we find that complainant has stated a claim. She indicated that
she was aggrieved regarding the terms and conditions of her employment.
As such, we find that the agency improperly dismissed the complaint for
failure to state a claim.
Accordingly, we reverse the agency's final decision and remand the
complaint for further processing as ordered below.
ORDER (E0408)
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 (K1208)
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 (M1208)
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 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 (R0408)
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 (Z1008)
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
July 13, 2009
__________________
Date
2
0120091701
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120091701