01983053
02-19-1999
Patricia Newman, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency
Patricia Newman v. United States Postal Service
01983053
February 19, 1999
Patricia Newman, )
Appellant, )
) Appeal No. 01983053
v. ) Agency No. 4-E-870-0007-98
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency )
)
DECISION
INTRODUCTION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (Commission) from the final decision of the agency concerning
her complaint of unlawful employment discrimination in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Section 2000e
et seq. The appeal is accepted by the Commission in accordance with
the provisions of EEOC Order No. 960.001.
ISSUE PRESENTED
The issue presented herein is whether the agency properly dismissed
appellant's complaint for failure to state a claim pursuant to 29
C.F.R. �1614.107(a).
BACKGROUND
Appellant filed a formal complaint of discrimination dated November 17,
1997, based on sex (female), age (DOB 2-8-44), and physical disability
(degenerative spine disease) when management disputed her eligibility to
collect the $10.00 per day remedy specified by a collective bargaining
agreement between appellant's union and the agency.
According to an agreement between the carriers and the agency, where
the results of a carrier's route inspection indicate the route workload
should be adjusted, such adjustments must be effected within 52 days of
the completion of the inspection. Where management fails to adjust an
overburdened route within 52 days of the inspection, $10.00 per day, for 6
days a week is to be paid by the agency to the regular carrier beginning
the 53rd day and ending when the adjustment has been implemented.
Route inspections are performed periodically by the agency or at the
carrier's request.
Appellant, a letter carrier, was diagnosed with degenerative spine disease
and requested eight hour day work assignments with limits on repetitive
motions and the amount of weight carried. In October, 1996, appellant
requested a route inspection to evaluate her workload. Appellant's route
inspection was performed between February 10, 1997 and February 15, 1997.
Thereafter, management failed to adjust her route within 52 days. In two
subsequent meetings, a manager (Management) told appellant he did not
feel she should receive the $10.00 per day remedy since she did not do
overtime due to her medical restrictions.
Appellant states in her complaint she filed a grievance on October
3, 1997.
The agency filed a Final Agency Decision February 10, 1998 dismissing
appellant's complaint for failure to state a claim pursuant to 29
C.F.R. �1614.107(e). The agency stated the issue of contractual
payments and qualifications for those payments is covered by a collective
bargaining agreement between the union and the agency. The agency further
stated, permitting appellant to use the EEOC process would circumvent
other administrative machinery.
ANALYSIS AND FINDINGS
The Commission finds that the agency erred when it dismissed appellant's
complaint based on its view that issues concerning contractual payments
are covered by collective bargaining agreements between the union and
the agency.
The Commission repeatedly has reversed agency dismissals for failure
to state a claim where the agency based the dismissal on its view of
the ultimate merits of the complaint. See, e.g., Franz v. Treasury,
EEOC Request No. 05950734 (April 29, 1996) (agency's argument that the
complainant was not disparately treated went to the merits of his claim):
Hagan v. Department of Veterans Affairs, EEOC Request No. 05920709
(January 7, 1993) (agency wrongfully dismissed allegations of disparate
treatment in the payment of licensing fees based on the ground that
the agency could not pay an employee's licensing fees); Cann v. United
States Postal Service, EEOC Request No. 05920861 (December 31, 1992)
(agency wrongfully dismissed allegations the agency failed to upgrade an
employee to full-time regular status on the ground that there were no
full time positions available to him under the terms of the collective
bargaining agreement).
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;
�1614.106(a). The Commission's federal sector case precedent has long
defined as "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. Department of the Air Force, EEOC
Request No. 05931049 (April 21, 1994). The Commission finds appellant
states a claim when she alleges the agency decided she was not eligible
to collect a union negotiated benefit due to her handicap and the work
restrictions she had requested to accommodate her handicap.
CONCLUSION
The agency's decision to dismiss appellant's complaint is REVERSED and
REMANDED to the agency for processing as ORDERED below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations 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
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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark,
the request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
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
February 19, 1999 Ronnie Blumenthal
DATE Director
Office of Federal Operations