0120102321
09-28-2010
Cheryl S. Walton, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Western Area), Agency.
Cheryl S. Walton,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal No. 0120102321
Agency No. 4E-970-0009-10
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated March 30, 2010, 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. � 791 et seq. For the following reasons, the Agency's decision is REVERSED.
BACKGROUND
At the time of the events giving rise to this appeal, Complainant was a Lead Sales and Services Associate at the Por-Midway Postal Store Station in Portland, Oregon. On March 2, 2010, Complainant filed an EEO complaint alleging discrimination on the basis of disability. In its decision, the Agency defined Complainant's claim in the complaint as whether Complainant was discriminated against on the basis of disability (unspecified) when on October 22, 2009, she became aware that she was harassed about changing her schedule, and her request for donated leave was not approved.
The Agency dismissed the complaint for failure to state a claim, citing 29 C.F.R. � 1614.107(a)(1). The dismissal stated that there was "no evidence to support the Complainant's claims of badgering about her change of schedule no[r] any alleged delay in processing her request for donated leave." It noted that once Complainant had "correctly requested the leave she was entitled to, her request was granted." It also noted that her request for donated leave was processed. The Agency further found that Complainant's complaint did not rise to the level of stating a claim of harassment, and that she did not suffer an adverse action or harm or loss to a term, condition or privilege of her employment.
CONTENTIONS ON APPEAL
On appeal, Complainant argued that the Agency's dismissal should be reversed. She claimed that the Agency had misrepresented her complaint in that she had specified a number of physical and mental conditions from which she suffered so her disability was not "unspecified." She stated that for a number of months prior to July 2009, she had requested changes to her schedule in order for her to care for her terminally ill mother, and each had routinely been approved. However in July and August 2009, her manager at the time (MO-1) subjected her request to more scrutiny than usual, and failed to either approve or disapprove the request (which was a disapproval). According to Complainant, in September 2009, she was out on Family Medical Leave Act leave (without pay) for three months, and had requested to participate in the leave donation program. She claimed that MO-1 did not process her request to participate in the program for over two months, which resulted in her not receiving leave which co-workers had donated to her (and consequently not being paid for that time).
The Agency opposed Complainant's appeal, and argued that MO-1 was entitled to ask for clarification on the schedule change, and that complainant's leave donation request was processed.
ANALYSIS AND FINDINGS
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).
We find, after a review of the record and Complainant's appeal submissions, that the Agency has incorrectly defined the claim in Complainant's complaint. We find that the complaint is more properly defined as whether Complainant was discriminated against on the basis of disability (physical and mental) when:
1. in July and August 2009, MO-1 did not approve her schedule change request and subjected it to a higher level of scrutiny; and
2. from August 25, 2009 through October 22, 2009, MO-1 delayed processing her leave donation program request, which resulted in a loss of pay.
The Commission finds that the complaint, as properly defined in this decision, is sufficient to state a claim. The denial of schedule change in claim 1 sufficiently states a harm to a term, condition or privilege of employment. Likewise, MO-1's delay in processing Complainant's leave donation request resulted in a loss of over 120 hours of donated leave, according to documents contained in Complainant's appeal submission. Had those hours been granted to Complainant, she would have received pay for that amount of time, rather than Leave Without Pay. We note that the leave donation request for Complainant's condition, dated August 25, 2009, (as opposed to the properly denied claim for leave donations to provide care to her mother, dated August 12, 2009), was processed in six days once it was properly submitted to the Human Resources Shared Service Center. If the request had been submitted in a timely manner, Complainant would have received the benefit of the leave donated in September and October.
Accordingly, the agency's decision is hereby REVERSED. The complaint, as redefined in this decision, is REMANDED for further processing in accordance with the Order below.
ORDER (E0610)
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 (K0610)
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 (M0610)
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), at 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. � 1614.604I.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610)
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 (Z0610)
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, 794I. 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
___9/28/10_______________
Date
2
0120102321
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102321