01A14732_r
11-02-2001
Theresa P. Middlebrook, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Theresa P. Middlebrook v. United States Postal Service
01A14732
November 2, 2001
.
Theresa P. Middlebrook,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A14732
Agency No. 1-D-271-0027-01
DECISION
Upon review, the Commission finds that the complaint was improperly
dismissed, in part, pursuant to 29 C.F.R. � 1614.107(a)(1), for failure
to state a claim. Complainant claimed that she had been discriminated
against on the basis of race when:
(1) on March 23, 2001, she experienced a panic attack at work as a result
of the harassment she has experienced at work, when a coworker is not
required to punch the time clock and she is directed to do so; and
(2) on March 26, 2001, she was told by the Manager, In-Plant Support
that she would have to report to the new plant.
The agency dismissed the complaint for failure to state a claim.
The only proper questions in determining whether a claim is within the
purview of the EEO process are (1) whether the complainant is an aggrieved
employee and (2) whether she has alleged employment discrimination covered
by the EEO statutes. An employee is "aggrieved" if she has suffered
direct and personal deprivation at the hands of the employer. See Hobson
v. Department of the Navy, EEOC Request No. 05891133 (March 2, 1990).
In claim 1, complainant specifically alleged that she is required to punch
an agency time clock, but that a co-worker is not required to do so.
Complainant's claim is sufficient to render her an aggrieved employee.
Because complainant has alleged that the adverse action was based on race,
she has raised a claim within the purview of the EEOC regulations.
Concerning claim (2) we find that complainant's bare claim that she
was told to report to the new plant, without more, is not sufficient to
state a claim under our regulations. The Commission has consistently
held that a comment or remark without more is no sufficient to render
a complainant aggrieved. Fuller v. USPS, EEOC Request No. 05910324
(May 2, 1991). Moreover, we find that claim (2) is not sufficient to
state a claim of harassment, even when considered together with the
matter addressed in claim (1), which was discussed above. See Cobb
v. Department of the Treasury, Request No. 05970077 (March 13, 1997).
Accordingly, the agency's final decision dismissing claim (2) is AFFIRMED.
The dismissal of claim (1) is REVERSED. Claim (1) is hereby REMANDED
for further processing in accordance with the Order below.
ORDER (E0900)
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 claim 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 (K0501)
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 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 (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (T0900)
This decision affirms the agency's final decision/action 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 within ninety (90) calendar
days from the date that you receive this decision 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. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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. If you file
a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 2, 2001
__________________
Date