05980707
04-29-1999
Hannelore G. Hansen, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Hannelore G. Hansen v. United States Postal Service
05980707
April 29, 1999
Hannelore G. Hansen, )
Appellant, )
)
v. ) Request No. 05980707
) Appeal No. 01972179
William J. Henderson, ) Agency No. 1-K-222-1023-96
Postmaster General, )
United States Postal Service, )
Agency. )
)
GRANTING OF REQUEST TO RECONSIDER
On April 25, 1998 the appellant initiated a request to the Equal
Employment Opportunity Commission (Commission) to reconsider the decision
in Hansen v. United States Postal Service, EEOC Appeal No. 01972179 (March
24, 1998). The decision was received by the appellant on March 30, 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
that 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 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 foregoing reasons, the appellant's request to reconsider is
granted, in part.
ISSUE PRESENTED
Whether the previous decision properly affirmed the agency's final
decision which dismissed a portion of the appellant's complaint for
failure to state a claim.
BACKGROUND
The appellant filed an EEO complaint alleging that she was discriminated
against on the bases of her race (white) and subject to reprisal (EEO
activity). The agency characterized the complaint as regarding the
appellant (1) on July 11, 1996 being moved to another work operation (2)
on July 13, 1996 being given a discussion regarding work performance and
cooperation and being advised of the Employee Assistance Program (EAP),
(3) on July 16, 1996 being assigned to work on the other side of a Flat
Sorter Machine, (4) on July 16, 1996 attending her pay location meeting
regarding a supervisor's alleged unfair and disrespectful practices, (5)
on July 16, 1996 not being provided time to see a Shop Steward because
the appellant was not provided a replacement until 6:15 a.m., and (6)
on July 19, 1996, being referred to EAP.
The agency accepted allegations 1, 3 and 5 for investigation, and
dismissed the remaining allegations for failure to state a claim.
With regard to allegation 2, the agency found that the discussion
did not constitute a personal harm or loss to a term, condition
or privilege of employment. It reasoned that it was corrective in
nature, not disciplinary, and no action was taken against the appellant.
With regard to allegation 4, the agency reasoned that it appeared it was
supportive background and not a live allegation, and the appellant was not
aggrieved with regard to this matter. With regard to allegation 6, the
agency reasoned that an employee is not aggrieved by a referral to EAP.
On appeal, the appellant argued that allegations 2 and 6 stated a claim.
In the record below, the appellant stated that allegation 6 regarded being
ordered to go to EAP, in a town 20 miles away during rush hour, not being
referred there. This was consistent with her complaint where she alleged
that she was told by a supervisor that because nobody wanted to work with
her she had to see a counselor at "0630." According to the counselor's
report, the supervisor stated that he referred the appellant to EAP
because she exhibited irrational, territorial, and domineering behavior
which was reported to him, so he sought assistance for the appellant.
The previous decision was brief and affirmed the final agency decision.
In her request for reconsideration, the appellant argues her case should
be processed on the merits.
ANALYSIS AND FINDINGS
In order to reconsider the Commission's previous decision, the appellant
must present evidence or argument that satisfies one of the criteria
of 29 C.F.R. �1614.407. After considering the appellant's request,
we find that she has satisfied the criteria for reconsideration, in part.
An agency shall accept a complaint from any aggrieved employee or
applicant for employment who believes that she has been discriminated
against by that agency because of race, color, religion, sex,
national origin, age, disabling condition or reprisal (EEO activity).
29 C.F.R. �1614.103 and .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. Department of the
Air Force, EEOC Request No. 05931049 (April 21, 1994).
We find that allegation 2 fails to state a claim for the same reason
recited by the agency. Remarks or comments unaccompanied by a concrete
agency action usually are not a direct and personal deprivation sufficient
to render an individual aggrieved for the purposes of Title VII. Henry
v. United States Postal Service, EEOC Request No. 05940695 (February 9,
1995).
We agree, for the same reason found by the agency that allegation 4
fails to state a claim.
We find, however, that allegation 6 states a claim. In finding that
allegation 6 failed to state a claim, the agency characterized the
allegation as a referral to EAP. The Commission has ruled that a referral
to EAP which is not part of a harassment claim fails to state a claim.
Phillips v. United States Postal Service, EEOC Request No. 05880558
(October 27, 1988) (referral did not adversely affect the terms or
conditions of the complainant's employment in that it was confidential
and was not discipline); Hatchett v. United States Postal Service,
EEOC Request No. 05950758 (May 16, 1997)(finding that a referral to EAP
stated a claim, distinguishing Phillips on the grounds that the referral
was part of a harassment claim).
The instant circumstance is different. Here, the appellant contended
that she was not just advised about EAP, but was ordered to see an EAP
counselor 20 miles away during rush hour. Where, as is the case here,
the appellant's attendance to EAP 20 miles away during rush hour was
allegedly compelled, this constituted an adverse affect on the terms
and conditions of the appellant's employment. Since the appellant was
allegedly ordered to go, not doing so would violate an order, making it
different than advice about EAP.
Accordingly, the portion of the final agency decision which dismissed
allegations 2 and 4 is AFFIRMED, and the portion of the final agency
decision which dismissed allegation 6 is REVERSED.
CONCLUSION
After a review of appellant's request to reconsider, the previous
decision, and the entire record, the Commission finds that the appellant's
request meets the criteria of 29 C.F.R. �1614.407(c), in part. It is
therefore the decision of the Commission to grant the appellant's request.
The decision of the Commission in EEOC Appeal No. 01972179 is MODIFIED,
and allegation 6 is remanded in accordance with the order below. This is
not a decision on the merits of the appellant's complaint.
ORDER
The agency is ORDERED to process the remanded allegation 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.
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:
April 29, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat