Yolanda E. Ambrose, Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.

Equal Employment Opportunity CommissionMar 6, 2012
0120113989 (E.E.O.C. Mar. 6, 2012)

0120113989

03-06-2012

Yolanda E. Ambrose, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.




Yolanda E. Ambrose,

Complainant,

v.

Patrick R. Donahoe,

Postmaster General,

United States Postal Service

(Southeast Area),

Agency.

Appeal No. 0120113989

Agency No. 4G330004811

DECISION

Complainant filed a timely appeal with this Commission from the

Agency's decision dated August 22, 2012, dismissing his 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 events giving rise to this complaint, Complainant worked as

a Manager of Customer Service at the Agency’s Blue Lagoon facility in

Miami, Florida. On August 2, 2011, Complainant filed a formal complaint

alleging that the Agency subjected her to discrimination on the bases of

race (African-American), national origin (Not Specified), sex (female),

religion (Not Specified), color (Not Specified), age (age not provided),

and reprisal for prior protected EEO activity under Title VII of the Civil

Rights Act of 1964 when during the period from March 25 to May 2, 2011:

1. Complaint was continually harassed, humiliated and yelled at by

management about her performance and decision making; and

2. Complaint was made to work long hours with a shortened staff.

On August 22, 2011 the Agency issued a final decision dismissing the

complaint pursuant to 29 C.F.R. 1614.107(a). Specifically, the Agency

found that Complainant was not an aggrieved employee, but that what

Complainant alleged in her complaint were petty workplace disputes with

no indication that her conditions of employment were altered.

The instant appeal was filed form the Agency’s dismissal of

Complaint’s complaint. In response, the Agency requests that we affirm

its decision dismissing the complaint.

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).

Following a review of the record, the Commission finds that the Agency

erred in dismissing Complainant’s complaint. Complainant alleged that

she was short-staffed and had to do more work. Management, however,

subsequently moved her supervisor to another branch and Complainant

was forced to perform dual duties, working the hours of 4am to 7pm from

March 29 until April 13, 2011. We find that working long hours for a

number of days, with a twofold increase in workload, constitutes a harm

with respect to a term, condition, or privilege of employment for which

there is a remedy. See Diaz. We therefore find Complainant states a

valid claim.

Accordingly, the Agency's final decision dismissing Complainant's

complaint is VACATED. The complaint is hereby REMANDED to the Agency for

further processing in accordance with this decision and the ORDER below.

ORDER

The agency is ordered to process the remanded claims 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 6, 2012

__________________

Date

2

0120113989

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0120113989