01982311
11-10-1998
Tina Palmer, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Tina Palmer, )
Appellant, )
)
v. ) Appeal No. 01982311
) Agency No. 1-C-151-0032-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning her complaint of unlawful employment discrimination,
in violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. �2000e et seq. and Section 501 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. �791 et seq. The final agency decision was received
by appellant on January 6, 1998. The appeal was postmarked February 3,
1998. Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)),
and is accepted in accordance with EEOC Order No. 960, as amended.
On November 13, 1997, appellant initiated contact with an EEO Counselor.
In that portion of the EEO Counselor Inquiry Report requesting an
identification of the bases of alleged discrimination, the boxes marked
sex and physical disability ("swollen ankle") were checked. In an
Information for Precomplaint Counseling Form, appellant stated she was
assigned to do "standing labor" though her right ankle is swollen and
she is unable to stand on her feet for "long hours." Informal efforts
to resolve appellant's concerns were unsuccessful.
On December 2, 1997, appellant filed a formal complaint. In that
portion of the complaint form requesting that complainants identify the
type of discrimination alleged, appellant checked the box identified as
"retaliation." In that portion of the complaint form requesting that
complainants identify the incidents of discrimination, appellant made
the following statement:
I was improperly removed from my position as casual clerk without
consideration and told to do work I could not easily perform without
accommodation.
On December 31, 1997, the agency issued a final decision. Therein, the
agency determined that appellant alleged that she was improperly removed
from her position as Casual Clerk, solely on the basis of reprisal.
The agency dismissed appellant's formal complaint for failure to state
a claim. Specifically, the agency found that appellant had no record
of prior EEO activity to support the basis of reprisal.
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 statues.
Appellant alleged that she was the victim of unlawful employment
discrimination when she was removed from the position of Casual Clerk.
The Commission determines that the agency properly dismissed reprisal as
a basis in appellant's complaint, because the record does not reflect
that appellant has a record of prior EEO activity to support the basis
of reprisal.
The Commission notes, however, that the record reflects that appellant
alleged a basis other than reprisal. During EEO counseling, appellant
stated that she was assigned to perform work while standing despite
having a swollen ankle. Moreover, in her formal complaint, appellant
expressly stated that she was removed from her position as Casual Clerk
and that she was directed to perform an assignment that she could not
easily perform "without accommodation."
The Commission has previously held that "[i]t is well established that
EEO charges are to be liberally construed to effectuate the purposes of
the discrimination statutes and the crucial role of the private litigant
in the statutory scheme. Sanchez v. Standard Brands Inc., 431 F.2d
455 (5th Cir. 1970); President v. Vance, 627 F.2d 353 (D.C. Cir. 1980)
(applying the Sanchez principles to federal employees)." Raipal v. USPS,
EEOC Request No. 05920037 (May 19, 1992). The crucial element in a
charge of discrimination is the set of facts alleged therein, not
the complainant's conclusions concerning the agency's motivation.
Mahood v. Department of Defense, EEOC Appeal No. 01941890 (May 2, 1994).
Here, the record reflects that appellant alleged that she was the
victim of unlawful employment discrimination on the basis of disability,
as well as retaliation. Accordingly, the agency's decision to dismiss
appellant's complaint in its entirety was improper. The dismissal of the
basis of reprisal was proper; the dismissal of the complaint on the basis
of disability was improper. Appellant's complaint of discrimination on
the basis of disability is REMANDED to the agency for further processing
in accordance with this decision and applicable regulations.
ORDER (E1092)
The agency is ORDERED to process the remanded allegation of discrimination
on the basis of disability in accordance with 29 C.F.R. �1614.108.
The agency shall acknowledge to the appellant that it has received
the remanded allegation within thirty (30) calendar days of the date
this decision becomes final. The agency shall issue to appellant a
copy of the investigative file and also shall notify appellant 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 appellant requests a final decision without
a hearing, the agency shall issue a final decision within sixty (60)
days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision 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 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.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
November 10, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations