0120103005
11-18-2010
Hye Y. Suh, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Hye Y. Suh,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120103005
Agency No. 1J-602-0040-10
DECISION
On June 19, 2010, Complainant filed an appeal from the Agency's May 20, 2010, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq; the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether the Agency properly dismissed Complainant's two claims of discrimination as having been raised in another forum and for failure to state a claim, respectively.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Distribution Clerk, PS-06, at the Agency's Palatine, Illinois Processing and Distribution Center.
On May 4, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability, age (47) and retaliation (prior EEO activity) when:
1. on March 23, 2010, she was notified that she would no longer be allowed to work due to an work-related injury she suffered, because of the National Reassessment Process (NRP); and
2. on unspecified date(s), she was subjected to harassment in that she was placed on stand-by, in full view of the other employees in the facility, and was not allowed to talk or read.
The Agency issued a decision on May 20, 2010, dismissing the claims.1 The Agency dismissed claim 1 because Complainant filed an appeal with the Merit Systems Protection Board (MSPB). The Agency dismissed claim 2 for failure to state a claim. Complainant appealed the Agency's decision to the Commission. On appeal, Complainant primarily argues the merits of her claims.
ANALYSIS AND FINDINGS
With regard to claim 1, we find that the Agency erred in dismissing this claim. A mixed-case complaint is a complaint of employment discrimination filed with a federal agency, related to or stemming from an action that can be appealed to the MSPB. 29 C.F.R. � 1614.302(a)(1). An aggrieved person may initially file a mixed case complaint with an agency or may file a mixed case appeal directly with the MSPB, pursuant to 5 C.F.R. � 1201.151, but not both. 29 C.F.R. � 1614.302(b). An agency shall dismiss a complaint where the complainant has raised the matter in an appeal to the MSPB. 29 C.F.R. � 1614.107(a)(4).
As a preliminary matter, we note that because Complainant's disability allegation in claim 1 has been addressed in Suh v. U.S. Postal Serv., EEOC Appeal No. 0120102829 (Sept. 24, 2010), we will not address that issue here. The remaining allegations in claim 1 involve age discrimination and retaliation. The record reveals that on April 9, 2010, Complainant appealed claim 1 to the MSPB. Specifically, Complainant alleged, "I was doing medically suitable work for Nixie unit for about 3 years. All of a sudden, Management said there is no work available for me." MSPB Appeal Form at 2. However, the record reveals that Complainant contacted an EEO Counselor on March 28, 2010.2 We find that Complainant elected to use the EEO process prior to her filing her MSPB appeal. The Agency argues on appeal that, "parallel processing of an individual complaint and a class complaint arising out of the same facts [regarding the NRP] would not serve the principle of judicial economy." Agency Brief at 2. However, we remind the Agency that the claims of age discrimination and retaliation are not part of any other pending case. Therefore, these claims must proceed in the EEO forum. Accordingly, we reverse the Agency's dismissal of claim 1 with regard to Complainant's age and retaliation claims, and remand claim 1 for further processing.
With regard to claim 2, an agency shall dismiss a complaint that fails to state a claim. 29 C.F.R. � 1614.107(a)(1). An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that 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. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).
The incident alleged by Complainant in claim 2 did not result in a personal loss or harm regarding a term, condition, or privilege of employment. Moreover, we find that the claim, even if proven to be true, would not support a claim that Complainant was subjected to harassment that was sufficiently severe or pervasive to alter the conditions of her employment. See Cobb v. Dep't of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the dismissal of the age and retaliation allegations in claim 1 and REMAND those claims for further processing; and AFFIRM the Agency's dismissal of claim 2. The Agency is required to comply with the Order of the Commission, below.
ORDER
The Agency is ordered to process claim 1 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 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 (T0610)
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 (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
___11/18/10_______________
Date
1 We note that the Agency issued a decision regarding Complainant's disability allegations in claim 1. The Agency determined that her claims were subsumed in a pending class action, recently certified in McConnell v. U.S. Postal Serv., EEOC Appeal No. 0720080054 (Jan. 14, 2010). The Commission affirmed the Agency's decision in Hye Y. Suh v. U.S. Postal Serv., EEOC Appeal No. 0120102829 (Sept. 24, 2010).
2 The EEO Counselor's report states that Complainant initially contacted the EEO Counselor on March 26, 2010; however, the record reveals that the incident occurred on March 28, 2010. We assume for the sake of argument that Complainant contacted the EEO Counselor on March 28, 2010. Either way, Complainant clearly elected to use the EEO process prior to her April 9, 2010, appeal to the MSPB.
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0120102829
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120103005