Stephanie M. Gilliam, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 13, 2000
01981859 (E.E.O.C. Sep. 13, 2000)

01981859

09-13-2000

Stephanie M. Gilliam, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Stephanie M. Gilliam v. United States Postal Service

01981859

September 13, 2000

.

Stephanie M. Gilliam,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01981859

Agency No. 4C-190-0274-97

DECISION

Complainant filed a timely appeal with this Commission from an agency

decision dated December 2, 1997, 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. and Section

501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29

U.S.C. � 791 et seq.<1> EEOC Regulation 29 C.F.R. � 1614.107(b) provides

that where an agency decides that some but not all of the claims in a

complaint should be dismissed, the agency shall notify the complainant

of its determination; however, this determination is not appealable until

final action is taken on the remainder of the complaint. The Commission

previously inquired of the parties the status of the remainder of the

complaint at issue. Based on the agency's response, it appears that

the remainder was the subject of a final agency decision on February 2,

1999, rendering those claims pending herein the only remaining viable

matters and ripe for review on appeal.

In her complaint, complainant alleged that she was subjected to

discrimination on the bases of race (Black), sex (female), and disability

(herniated disc, back, and neck) when:

Complainant was issued an AWOL (Absent Without Notice Leave) Notice for

leave that was denied on July 11, 1997 and July 12, 1997;

On an unspecified date, complainant was denied the use of a hand cart

in accordance with her physical disability; and,

On September 12, 1997, complainant was denied medical attention for her

allergies.

The agency dismissed claims (2) and (3) pursuant to the regulation set

forth at 29 C.F.R. � 1614.107(a)(1), for failure to state a claim.

With regard to claim (2), the agency stated that complainant was

not issued a hand cart because the hand cart was over the weight of

complainant's weight restrictions. With regard to issue (3), the

agency stated that once complainant complained of dust bothering her

allergies, she was reassigned to another area to meet her occupational

limited duty restrictions while continuing to be accommodated for her

non-occupational complaint of allergies. Thus, the agency argued that

complainant failed to show that she was harmed by the alleged adverse

management action.

On appeal, complainant responds to the agency's decision to dismiss

claims (2) and (3) for failure to state a claim. With regard to claim

(2), complainant states that based on prohibited discrimination she was

denied a hand cart within her weight restrictions while another employee,

Person A, received a hand cart within the same restricted weight capacity.

With regard to claim (3), complainant claims that she requested medical

attention on September 12, 1997, to determine whether she could use a

mask to finish her tour of duty. Complainant states that when she was

denied medical attention she was reassigned from Tour II (7:00 a.m. -

3:30 p.m.) to Tour III (8:30 p.m. - 5:00 a.m.) which has resulted in pain

and hardship. Specifically, complainant states that she was reassigned

to a tour that violated her job related injury restrictions.

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).

With regard to claim (2), we find that the agency improperly dismissed

this claim for failure to state a claim. Complainant alleged that she

was denied a hand cart within her weight restrictions while another

employee was afforded this accommodation. After a review of the record,

we find that the agency's articulated reason for the action in dispute,

i.e., that the hand cart was over the weight of complainant's weight

restrictions, goes to the merits of complainant's claim, and is irrelevant

to the procedural issue of whether she has stated a justiciable claim.

With regard to claim (3), we find that the agency improperly dismissed

this claim. Complainant was harmed due to the agency's alleged denial

of medical treatment and alleged resulting reassignment. Therefore,

we find that claim (3) states a claim.

Accordingly, the agency's decision to dismiss claims (2) and (3) of

complainant's complaint was improper and is REVERSED and these claims

are REMANDED for further processing in accordance with the Order below.

ORDER (E0800)

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 (K0800)

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 (M0800)

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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)

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

September 13, 2000

__________________

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 Part 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.