0120102186
08-16-2010
Genel Owens, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Genel Owens,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120102186
Agency No. 1F942001410
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 reasons that follow, the Agency's final decision is MODIFIED.
ISSUE PRESENTED
Whether the Agency correctly dismissed Complainant's complaint for failure to state a claim.
BACKGROUND
In a complaint dated March 12, 2010, Complainant, a Mailhandler at the Agency's San Francisco, California NDC, alleged that the Agency subjected her to discrimination on the basis of disability, when:
(1) on or about October 28, 2009, she was assigned to a training room that did not have a clock to read training books causing her eyes to hurt;
(2) On November 27 and 28, the training room was dark and she had to wait until the lights were turned on;
(3) On November 28, 2009, she was questioned by her supervisor about her break location and time; and
(4) Complainant's request for COP/Sick Leave was denied and she was charged AWOL.
AGENCY DISMISSAL
The Agency dismissed claim (4) on the grounds that it was a collateral attack on a process of the Department of Labor, and therefore, failed to state a claim. The Agency then addressed the remaining claims, and found that the totality of the circumstances and the actions complained of, if in fact true, was neither sufficiently severe nor pervasive to create a discriminatory hostile or abusive working environment. Thus, the Agency dismissed the entire complaint.
CONTENTIONS ON APPEAL
Complainant raises no new arguments on appeal. The Agency asks the Commission to affirm the dismissal decision.
ANALYSIS
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). An "aggrieved employee" is 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. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).
The only proper questions in determining whether a claim is within the purview of the EEO process are: (1) whether the Complainant is an aggrieved employee and (2) whether he or she has alleged employment discrimination covered by the EEO statutes. An employee is "aggrieved" if he or she has suffered a direct and personal deprivation at the hands of the employer. See Hobson v. Department of the Navy, EEOC Request No. 05891133 (March 2, 1990). Here, Complainant maintained that, because of her disability, she was assigned to a badly-equipped training room for more than a month. Accordingly, we find that she is aggrieved and does state a claim with respect to claims (1) and (2).
Accordingly, the Agency's final decision dismissal of claims (1) and (2) is REVERSED.
With respect to claim (3), the Commission has repeatedly found that remarks or comments unaccompanied by a concrete action by an Agency usually are not a direct and personal deprivation sufficient to render an individual aggrieved for the purposes of Title VII. See Backo v. U.S. Postal Serv., EEOC Request No. 05960227 (June 10, 1996); Henry v. U.S. Postal Serv., EEOC Request No.05940695 (February 9, 1995).
Finally, we agree that claim (4) is subject to dismissal because it represents a collateral attack on a process of the Department of Labor. See Wills v. Dep't of Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (September 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993).
CONCLUSION
Upon review, the Commission finds that the Agency's dismissal of the complaint must be MODIFIED. The Agency properly dismissed claims (3) and (4), pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. Accordingly, the Agency's final decision dismissing those claims is AFFIRMED. However, the dismissal is REVERSED as to claims (1) and (2). Those claims are REMANDED in accordance with the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claim in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claim 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. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0610)
This decision affirms the Agency's final decision/action 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 within ninety (90) calendar days from the date that you receive this decision 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. 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 (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, 794(c). 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
__8/16/10________________
Date
2
0120102186
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102186