0120102328
09-16-2010
Irene Lucarini, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Pacific Area), Agency.
Irene Lucarini,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120102328
Agency No. 1E-851-0005-10
DECISION
Complainant filed an appeal with this Commission from the Agency's decision dated May 3, 2010, dismissing her complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.; and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. Upon review, the Commission AFFIRMS in part and REVERSES in part the Agency's final decision dismissing Complainant's complaint.
ISSUE PRESENTED
The issue presented is whether the Agency properly dismissed Complainant's complaint for failure to state a claim.
BACKGROUND
In her complaint, Complainant alleged that the Agency subjected her to discrimination on the bases of race (unspecified), sex (female), age (51), and reprisal for prior protected EEO activity when:
1. On February 18, 2010, the Agency gave Complainant only 2.5 days notice prior to attending a six-week training program; and
2. During February 2010, Complainant was denied eLearning FFS 1 training.
In its Final Agency Decision (FAD), the Agency determined that Complainant failed to state a claim of discrimination.1 Complainant appealed the Agency's dismissal to the Commission.
CONTENTIONS ON APPEAL
On appeal, Complainant primarily argues that the Agency is retaliating against her for entering into a settlement agreement in 2008. Further, Complainant requests that her prior complaints be reinstated.
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. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).
With regard to claim 1, we find that the Agency appropriately determined that Complainant's complaint fails to state a claim. Even taking Complainant's allegation to be true, we find that, although Complainant was informed of a six-week training with only 2.5 days advance notice, she has not shown that she was injured or harmed with regard to a term, condition or privilege of employment. In Complainant's complaint, she only argues that the Agency violated its own rules and regulations when it failed to post the notice of the training in a timely manner. We find that this is insufficient to show that she was harmed in such a manner that a remedy can be provided. Accordingly, we AFFIRM the Agency's dismissal of claim 1.
With regard to claim 2, we find that the Agency erred in dismissing Complainant's claim. Specifically, we find that complainant has shown an injury or harm to a term, condition, or privilege of employment for which there is a remedy. See id. The denial of training, in and of itself, is sufficient to state claim for which there is a remedy. Accordingly, the Agency's final decision dismissing claim 2 is REVERSED.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find the Agency appropriately dismissed claim 1. However we remand claim 2 to the Agency for further processing in accordance with this decision and the Order below.
ORDER
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 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. � 1614.604(c).
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, 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
September 16, 2010
Date
1 In its dismissal decision, the Agency addressed Complainant's dissatisfaction with the processing of her complaint and also addressed other allegations raised by Complainant in her formal complaint. We note that on appeal, Complainant does not raise any concerns over these issues. The Commission exercises its discretion to review only the issue specifically raised in complainant's appeal. Equal Employment Opportunity Management Directive 110 (MD-110), Chap. 9, � IV.A (Nov. 9, 1999). Accordingly, we decline to address these issue on appeal.
??
??
??
??
2
0120102328
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120102328