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