0120151326
07-10-2015
Angela K. Carter, Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southwest Area), Agency.
Angela K. Carter,
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120151326
Agency No. 4G-760-0018-15
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated February 6, 2015, dismissing a formal 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.
BACKGROUND
During the period at issue, Complainant worked as a City Carrier Assistant at an Agency facility in Amarillo, Texas.
On January 20, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of sex. In her formal complaint, Complainant claimed that on December 1, 2014, she claimed discrimination when she "found out my resolution of my grievance from back in September 2014. I felt discriminated against based on my sex and due to the fact that [a named Agency employee] was a male." Complainant noted that following an incident of alleged sexual harassment (which had precipitated the above referenced grievance), it was not until December 2014 that she had been first informed by a Union Representative that the parties to the grievance had "come to an agreement." Complainant noted further that she had previously requested a "copy of the resolution on multiple times verbally and in writing."
On February 6, 2015, the Agency issued a final decision. Therein, the Agency found that the formal complaint was comprised of two claims, which it identified in the following manner:
1. In August of 2014, Complainant was subjected to sexual harassment by the 204 B Acting Supervisor and management delayed conducting an investigation for several weeks; and
2. On December 1, 2014, she found out the resolution of her sexual harassment grievance and she was not satisfied with the outcome.
The Agency dismissed the formal complaint dismissed the matter which it identified as claim 1, on the grounds of untimely EEO Counselor contact; and the matter which it identified as claim 2, for failure to state a claim.
The record indicates that Complainant filed a sexual harassment grievance against her supervisor in September 2014, for sending an inappropriate text message in August 2014. The grievance was resolved in August 2014 with the stipulation that the offending manager would not be allowed to supervise her for a period of two years. On December 1, 2014, Complainant found out the offending manager will be allowed to supervise her.
ANALYSIS AND FINDINGS
As a preliminary matter, we note that the Agency bifurcated the instant formal complaint into two separate claims. However, a fair reading of the formal complaint, as identified in pertinent part above, reflects one claim: following an alleged incident of sexual harassment that resulted in a grievance filed in September 2014, Complainant ultimately received a grievance determination on or about December 1, 2014, of which she was unsatisfied. We will therefore proceed to address this claim.
EEOC Regulation 29 C.F.R. �1614.107(a)(1) provides for the dismissal of a complaint which fails to state a claim within the meaning of 29 C.F.R. �1614.103. In order to establish standing initially under 29 C.F.R. �1614.103, a complainant must be either an employee or an applicant for employment of the agency against which the allegations of discrimination are raised. In addition, the claims must concern an employment policy or practice which affects the individual in his or her capacity as an employee or applicant for employment. 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 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. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
the Commission finds that it pertains to her dissatisfaction with the outcome of her grievance and the proper forum to her raise concerns is that forum- the grievance procedure and not the EEO complaint process.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is affirmed.
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 (S0610)
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. 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 (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
July 10, 2015
__________________
Date
2
0120151326
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120151326