0120103722
03-10-2011
Michelle E. Tackett, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Western Area), Agency.
Michelle E. Tackett,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal No. 0120103722
Agency No. 4E640005109
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision 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 finds that Complainant's complaint was
improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure
to state a claim.
BACKGROUND
At the time of the events at issue, Complainant was employed as a Sales
and Service Associate at the Joplin, Missouri Post Office. On February
4, 2009, Complainant filed a formal complaint alleging that the Agency
subjected her to discrimination on the bases of sex (female), religion
(not specified), disability (hearing impaired), and reprisal for prior
protected EEO activity when:
1. On October 11, 2008, the Agency changed Complainant's work hours; and
2. On November 13, 2008, Complainant was denied an interpreter for a
training session on November 13, 2008.
The instant complaint initially came before the Commission in Tackett
v. United States Postal Service, EEOC Appeal No. 0120092364 (June
17, 2010). Therein, Complainant appealed the Agency's decision to
hold claim 2, regarding the alleged denial of an interpreter, in
abeyance pending the certification of a class complaint addressing an
interpreter issue. See Tighe, et al v. United States Postal Service,
EEOC Hearing No. 320-2005-00065X. The Commission remanded claim 2 for
further processing, finding that the Agency failed to establish that
the time period for which Complainant is complaining regarding claim 2
is within the scope of the class complaint.
In the instant matter, the Agency again dismissed claim 2, this time for
failure to state a claim in accordance with EEOC Regulation 29 C.F.R. �
1614.107(a)(1). The Agency indicates that a grievance settlement dated
November 28, 2008, was reached through the Agency's negotiated grievance
procedure regarding claim 2. However, the Agency has failed to provide
the Commission with a copy of the grievance settlement in support of
its decision.
On appeal, Complainant again challenges the Agency's change of her work
schedule on October 11, 2008.
ANALYSIS AND FINDINGS
Upon review, the Commission finds that the Agency has failed to provide
sufficient documentation to support it decision. Although the Agency
indicates that a step 1 grievance settlement was reached on November 28,
2008, there is no evidence of record regarding the agreement. As the
Agency has the burden of providing evidence and/or proof to support its
final decisions, we find that the complaint was improperly dismissed. See
Ericson v. Department of the Army, EEOC Request No. 05920623 (January
14, 1993). Moreover, the Commission notes that the Agency has failed
to address Complainant's claim regarding her change in duty hours.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's
complaint is reversed. The complaint is hereby remanded to the Agency for
further processing in accordance with this decision and the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claims (change in duty
hours and interpreter issue) in accordance with 29 C.F.R. � 1614.108 et
seq 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
March 10, 2011
__________________
Date
2
0120103722
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120103722