01a52760
06-15-2005
Stephanie M. Davis, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Stephanie M. Davis v. United States Postal Service
01A52760
June 15, 2005
.
Stephanie M. Davis,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A52760
Agency No. 1H374000705
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated January 28, 2005, dismissing her complaint
of unlawful employment discrimination in violation of Section 501 of
the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. Sec. 791 et seq. In her complaint, complainant alleged that she
was subjected to discrimination on the basis of disability when:
her supervisor shared her personal information with another co-worker;
and
her scheduled Office of Worker's Compensation Programs (OWCP)
appointments were charged as unscheduled.
ISSUE PRESENTED
Whether her supervisor discriminated against complainant on the basis
of disability (carpal tunnel syndrome) by sharing personal information
about her with a co-worker and improperly charging her scheduled absences
as unscheduled?
BACKGROUND
Complainant alleges that on or about October 22, 2204, she received
a call from a co-worker. The co-worker allegedly informed complainant
that their supervisor had discussed complainant's absences with him.
The co-worker also informed complainant that their supervisor charged her
with being absent without leave (AWOL) because she had failed to call in.
Complainant alleges that she suffered injury because her scheduled OWCP
absences were marked as unscheduled and charged as AWOL.
On or about January 19, 2005, Complainant filed an EEO complaint of
discrimination with the agency, seeking $300,000 in compensatory damages
and $500,000 nuisance damages. The agency held that the complainant
failed to show she is an �aggrieved employee� - �there is no allegation
that complainant suffered a present harm or loss with respect to a term
or condition of her employment.� According to the agency, complainant
failed to show that the agency took disciplinary action against her.
Furthermore, the agency held that its alleged violation of the Privacy
Act is not within the purview of the EEO complaint process. Thus, the
agency dismissed complainant's claims pursuant to Sec.1614.107(a)(1).
ANALYSIS AND CONCLUSION
With respect to the alleged improper disclosure of personal information,
complainant must show that she was subjected to discrimination on a basis
covered by EEO statutes. Robinson v. Federal Deposit Insurance Corp,
EEOC Request No. 05A10956 (May 2, 2002). The claim must be within the
�zone of interests� of EEO statutes. In this case, complainant claims
her supervisor disclosed her personal information to a fellow employee.
Unless complainant's medical information was disclosed, her claim does
not fall within the purview of the Rehabilitation Act. Complainant does
not allege that her medical information was disclosed, but that her
supervisor disclosed her personal information regarding her absences.
Thus, the agency properly dismissed Claim 1 for failing to state a claim
in accordance with 29 C.F.R. 1614.107(a)(1).
The regulation set forth at 29 C.F.R. Sec. 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. Secs. 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).
The agency erred by holding that complainant failed to allege personal
loss or harm with respect to a term and condition of employment when
her scheduled OWCP absences were improperly charged as unscheduled.
The Commission has held that improperly charging scheduled absences as
unscheduled constitutes an adverse employment action. See e.g. Pierre
v. United States Postal Service, EEOC Request No. 01A42198 (July, 20,
2004). In this case, complainant asserts that she was discriminated
against when her supervisor improperly charged her scheduled OWCP
appointment absences as unscheduled, thereby adversely affecting her
employment track record. Complainant has alleged a personal loss or
harm with respect to a term, condition, or privilege of employment.
Thus, the final agency decision regarding Claim 2 should be reversed.
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm in part and reverse in part
the final agency decision. The final agency decision to dismiss claim
1 is affirmed. Claim 2 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 claims in accordance with
29 C.F.R. Sec. 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. Sec. 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. Secs. 1614.407, 1614.408, and 29 C.F.R. Sec. 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. Secs. 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. Sec. 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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. Sec. 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. Sec. 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. Sec. 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. Sec. 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. Secs. 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
June 15, 2005
__________________
Date