05980715
10-08-1998
Doretha Wiley, Appellant, v. William J. Henderson, Postmaster General, U.S. Postal Service, Agency.
Doretha Wiley v. U.S. Postal Service
05980715
October 8, 1998
Doretha Wiley, )
Appellant, )
)
v. ) Request No. 05980715
) Appeal No. 01975554
)
William J. Henderson, )
Postmaster General, )
U.S. Postal Service, )
Agency. )
__________________________________)
DECISION ON REQUEST TO RECONSIDER
On April 28, 1998, Doretha Wiley (appellant) initiated a request to the
Equal Employment Opportunity Commission (Commission) to reconsider the
decision in Doretha Wiley v. Marvin T. Runyon, Jr., Postmaster General,
U.S. Postal Service, EEOC Appeal No. 01975554 (April 8, 1998). EEOC
regulations provide that the Commission may, in its discretion, reconsider
any previous decision. 29 C.F.R. �1614.407(a). The party requesting
reconsideration must submit written argument or evidence which tends to
establish one or more of the following three criteria: new and material
evidence is available that was not readily available when the previous
decision was issued, 29 C.F.R. �1614.407(c)(1); the previous decision
involved an erroneous interpretation of law, regulation, or material fact,
or a misapplication of established policy, 29 C.F.R. �1614.407(c)(2);
and the decision is of such exceptional nature as to have substantial
precedential implications, 29 C.F.R. �1614.407(c)(3). For the reasons set
forth herein, appellant's request is GRANTED in part and DENIED in part.
Appellant filed a formal complaint of race (black), sex, age (49)
and reprisal discrimination on April 29, 1997. The complaint as found
in the file does not explicitly set forth her allegation, but simply
states the bases and a requested remedy. The agency, in its final
decision, defined her complaint as whether appellant was discriminated
against when she was told by the Postmaster at her facility that her
job was going to be abolished. This definition was set forth by the
EEO Counselor in the Counselor's report. The agency then dismissed
appellant's complaint pursuant to 29 C.F.R. �1614.107(a) for failing to
state a claim. The agency found that since appellant's position was not
abolished, she suffered no personal loss or harm to any term, condition
or privilege of her employment. Therefore, she was not aggrieved.
Furthermore, the agency characterized appellant's allegation as a proposal
to take a personnel action, which is properly dismissed pursuant to 29
C.F.R. �1614.107(e). The agency informed appellant that she could raise
this allegation with a Counselor if and when her position was abolished.
Appellant appealed and the previous decision affirmed the agency's
dismissal on the grounds cited by the agency. The previous decision
noted that appellant raised an allegation of discriminatory overtime
assignments in her appeal, but since it was not addressed in the formal
complaint or Counselor's report, it constituted a new claim not properly
before the Commission
Appellant's request for reconsideration argues that she did raise
the issue of discriminatory overtime assignments with the Counselor.
She presents an excerpt from the Counselor's report in which she describes
another employee with less seniority who appellant appears to allege
was given preferential treatment with respect to overtime assignments.
Appellant also mentioned overtime as an aspect of her requested remedy.
We find that the previous decision correctly affirmed the agency's
dismissal of appellant's allegation concerning the abolishment of her
position. The Postmaster's statement that she may abolish her position,
without having taken any action to do so, clearly constitutes a proposed
action which is properly dismissed pursuant to 29 C.F.R. �1614.107(e).
We agree with appellant's contention, however, that she did raise the
issue of discriminatory assignment of overtime as part of her informal
complaint. As the agency did not address this issue, we find that
this allegation must be remanded for further processing by the agency.
The agency shall either accept this allegation for processing or issue a
new final decision dismissing the allegation if such action is warranted
under our regulations.
After a review of appellant's request to reconsider, the previous
decision, and the entire record, the Commission finds that appellant's
request meets the criteria of 29 C.F.R. �1614.407(c), and it is the
decision of the Commission to GRANT appellant's request in part and
DENY her request in part. The decision in EEOC Appeal No. 01975554
(April 8, 1998) and the agency's final decision are AFFIRMED with
respect to the threat to abolish appellant's position. The allegation
concerning discriminatory overtime assignments is REMANDED to the agency
for processing in accordance with the Order stated below. There is no
further right of administrative appeal on a decision of the Commission
on this Request to Reconsider.
ORDER
The agency is ORDERED, within thirty (30) days of the date this decision
becomes final, to either accept the allegation concerning discriminatory
overtime assignments or issue a final decision dismissing the allegation.
If the agency accepts the allegation, it shall process it in accordance
with 29 C.F.R. �1614.108. 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.
RIGHT TO FILE A CIVIL ACTION (Q0993)
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 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 (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:
OCT 8, 1998
Date Frances M. Hart
Executive Officer
Executive Secretariat