05990132
04-15-1999
Patricia K. Wagner, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Patricia K. Wagner v. United States Postal Service
05990132
April 15, 1999
Patricia K. Wagner, )
Appellant, )
)
v. ) Request No. 05990132
) Appeal No. 01981357
William J. Henderson, ) Agency No. 1I-641-0003-98
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION ON REQUEST FOR RECONSIDERATION
On October 27, 1998, Patricia K. Wagner (appellant) timely initiated
a request to the Equal Employment Opportunity Commission (EEOC) to
reconsider the decision in Wagner v. United States Postal Service, EEOC
Appeal No. 01981357 (October 1, 1998). EEOC Regulations provide that
the Commissioners may, in their discretion, reconsider any previous
Commission 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 misapplication of established policy, 29 C.F.R. �1614.407(c)(2); and
the previous decision is of such exceptional nature as to have substantial
precedential implications, 29 C.F.R. �1614.407(c)(3). Appellant's request
is denied. However, the Commission reconsiders the matter on its own
motion.
Appellant filed an EEO complaint alleging discrimination based on race
(White), disability (not identified), sex, age, and reprisal when her
supervisor yelled at her after she cut her toe on a rest bar. Appellant
further alleged she was discriminated against when her supervisor kept
trying to get her to fill out a form (CA-1) for reporting work place
injuries. The agency dismissed the complaint for failure to state a claim,
and the previous decision affirmed without substantive comment.
Based on the record before us, the Commission finds no reason to disturb
the previous decision with respect to being yelled at and being asked to
fill out the CA-1 form. Appellant has not shown she suffered a harm
or loss with respect to a term, condition, or privilege of employment
regarding these allegations. Diaz v. Dept. of the Air Force, EEOC
Request 05931049 (April 21, 1994). Further, appellant did not show a
"direct personal deprivation at the hands of the employer." Id.
However, upon review of the record, the Commission notes that appellant
also alleged that she was no longer allowed to work on the fourth floor
since the incident, and that the supervisor barred her from working in the
area where the incident occurred. In her complaint appellant stated that
the supervisor told her he did not want her on the fourth floor and to
stay out of his unit. The notice of final interview stated that appellant
alleged that she now has to work in "Unit 030" where she is in "more
pain because there is more sitting and she cannot move around frequently
and or do other jobs." Appellant also indicated in both her appeal and
her request that since the incident she has not been allowed back to the
area where the incident occurred and that she has been forced to work in
"030". The Commission finds that this allegation states a claim.
After a review of appellant's request for reconsideration, the previous
decision, and the entire record, the Commission finds the appellant's
request does not meet the criteria of 29 C.F.R. �1614.407(c), and
it is the decision of the Commission to deny appellant's request.
The Commission reconsiders the matter on its own motion. The decision
of the Commission in Appeal No. 01981357 is affirmed to the extent that
appellant is complaining about being yelled at and being told to fill out
a CA-1 form. However, with respect to appellant's being moved to work on
another floor/area, the matter is remanded for further processing. There
is no further right of administrative appeal from the decision of the
Commission on this request for reconsideration.
ORDER (E1092)
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 allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to the appellant a copy of the investigative file and also shall notify
the 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 (R0993)
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. 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 15, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat