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.