Catherine A. Rinard, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 6, 2002
01A11798_r (E.E.O.C. Sep. 6, 2002)

01A11798_r

09-06-2002

Catherine A. Rinard, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Catherine A. Rinard v. United States Postal Service

01A11798

September 6, 2002

.

Catherine A. Rinard,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A11798

Agency No. 4C-430-0073-00

DECISION

Complainant filed a timely appeal with this Commission from the final

agency decision dated December 13, 2000, dismissing her 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.

The record further shows that by letter dated October 26, 1999,

complainant was advised that her employment with the agency would be

terminated as of October 27, 1999, due to her unavailability to work as

scheduled. Following complainant's October 1999 discharge from agency

employment, the Senior Manager Post Office Operations advised her by

letter dated May 22, 2000 that: (a) the Postal Inspection Service had

completed an investigation of the post office where she previously worked;

(b) she would not be held accountable for any shortages found by the

Inspection Service; and (c) a PS Form 2574 (Resignation from the Postal

Service) was enclosed to allow her to resign; and (d) once she resigned,

the notice of her removal would be removed from her personnel file.

Complainant sought EEO counseling on June 9, 2000, claiming that she

was the victim of unlawful employment discrimination on the bases of sex

and in reprisal for prior protected activity when beginning on July 10,

1999, (when she informed an agency official of a shortage in her clerk

drawer) she was subjected to a hostile work environment which resulted

in her termination, and she was forced to resign after the issuance of

the aforementioned letter on May 22, 2000. The EEO Counselor's Report

reflects that complainant's resignation became effective on August 14,

2000. During the inquiry of her formal complaint, complainant stated

that shortages and a subsequent investigation caused her so much stress

that the was incapable of coming to work, and that the agency used the

inability to work to support her removal.

In its December 13, 2000 decision, the agency dismissed the complaint for

failure to state a claim. Specifically, the agency found that complainant

had not been aggrieved because the May 22, 2000 letter cleared her record.

The agency stated that the May 22, 2000 letter could not affect agency

employment because she had not been an agency employee since October 1999.

The agency determined, moreover, that to the extent that complainant's

complaint could be construed as raising a claim regarding her October

1999 discharge, such a claim was untimely raised with an EEO Counselor on

June 9, 2000. The agency also dismissed the basis of reprisal because

it found that complainant had not engaged in prior EEO activity.

Failure to state a claim

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. Department of the Air Force, EEOC Request

No. 05931049 (April 21, 1994).

We find that the agency improperly dismissed the complaint for failure

to state a claim. Although complainant's employment was terminated in

October 1999, the May 22, 2000 letter from the agency was in essence

a catalyst that precipitated her subsequent resignation from agency

employment effective August 14, 2000. A fair reading of the record

reflects that complainant alleged that she was forced to resign from

agency employment, and that the forced resignation was a result of

a period of harassment that commenced in July 1999. The Commission

determines that the matters raised in the instant complaint allege a

personal loss or harm to a term, condition, or privilege of employment .

The agency's decision to dismiss the complaint for failure to state a

claim is REVERSED.

Untimely EEO Counselor contact

We determine that the instant complaint was improperly dismissed on the

grounds of untimely EEO Counselor contact. Complainant's initial EEO

contact of June 9, 2000, was within forty-five days of the May 22, 2000

letter which precipitated her purportedly forced resignation from agency

employment . The agency dismissal on these grounds is also REVERSED.

Reprisal as a basis

With regard to the basis of reprisal, the Commission determines that

this basis was properly dismissed. The record does not contains any

evidence reflecting that complainant engaged in prior protected activity.

The agency's dismissal of this basis is AFFIRMED.

In summary, the agency's dismissal of reprisal as a basis is AFFIRMED.

The agency decision to dismiss the complaint for failure to state a

claim and on the grounds of untimely EEO Counselor contact is REVERSED.

The complaint is REMANDED to the agency for further processing in

accordance with this decision and applicable regulations.

ORDER (E0900)

The agency is ordered to process the remanded claims in accordance with

29 C.F.R. � 1614.108. 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 (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

September 6, 2002

__________________

Date