0120122564
10-07-2011
Florence Y. Chi, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Florence Y. Chi,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120112564
Agency No. 1F-941-0023-11
DECISION
Complainant filed a timely appeal with this Commission from the
Agency's decision dated April 6, 2011, 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. 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 Mail Processing Clerk at the Agency’s Processing and Distribution
Center in San Francisco, California. On March 22, 2011, Complainant
filed a formal complaint alleging that the Agency subjected her to
discrimination on the bases of race (Asian) and national origin (Chinese)
when the hours of work she was assigned were reduced to four per week.
On April 6, 2011, the Agency issued a final decision dismissing the
complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state
a claim. From that decision, Complainant brings the instant appeal.
ANALYSIS AND FINDINGS
Complainant has shown an injury or harm to a term, condition, or privilege
of employment for which there is a remedy. See Diaz v. Dep’t of the
Air Force, EEOC Request No. 05931049 (April 21, 1994). Specifically she
has alleged that beginning on November 6, 2010 her duty hours have been
reduced to four per week. Reduction of hours negatively affects the
terms of Complainant’s employment. The Agency’s argument that the
complaint is an improper collateral attack on the collective bargaining
process is not well taken. The authorities upon which the Agency relies
are inapposite, relating to enforcement of grievance settlements and
challenges to union-initiated actions. In this case, the complaint
is a straightforward assertion that the Agency’s decision to reduce
Complainant’s work hours was motivated by discriminatory animus.
We find that the complaint states a claim and should not have been
dismissed.
CONCLUSION
For the foregoing reasons, the Agency’s final decision dismissing
the complaint is REVERSED and this matter is REMANDED to the Agency for
further processing in accordance with the Order below.
ORDER (E0610)
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 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.
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
October 7, 2011
__________________
Date
2
0120112564
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120112564