0120112735
10-14-2011
Jackie C. Caldwell, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Jackie C. Caldwell,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120112735
Agency No. 4J606019110
DECISION
Complainant filed a timely appeal1 with this Commission from the Agency's
decision dated October 29, 2010, 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 Supervisor, Customer Services at the Agency’s Clearing Station
facility in Chicago, IL. On October 9, 2010, Complainant filed a formal
complaint alleging that the Agency subjected her to discrimination on the
basis of sex (female) when on August 3, 2010, she received notification
that she was being involuntarily reassigned to the Clearing Station,
and the Agency failed to give her advance notice that she was an impacted
employee. Complainant further alleges that as a result of the Agency’s
rush to reassign her, she was she was denied the opportunity to choose
from (25) vacant district supervisor positions.
On October 29, 2010, the Agency issued a final decision dismissing the
complaint pursuant to EEOC Regulation 29 C.F.R. § 1614.107(a)(1).
Specifically, the Agency determined that Complainant failed to state
a claim because Complainant’s assignment to Chicago, IL, was the
result of the Supervisor Work Credit system which determined that the
Agency’s Riverdale post was no longer qualified to have two supervisors
and Complainant’s name as the most recently hired manager, was submitted
as the one supervisor who would have to leave. The Agency also indicated
that Complainant was chosen as the supervisor to be reassigned because
she did not have “front end” experience as well as the “back-end”
supervisory experience that was necessary to run the Riverdale station.
Finally, the Agency indicated that the timing of the decision to reassign
Complainant to Chicago was rushed because the Agency needed to have
Complainant and the remaining relief supervisor in place before the
nationwide freeze on promotions occurred.
ANALYSIS AND FINDINGS
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).
Upon review of this matter, we find that Complainant has alleged
sufficient harm or loss to the conditions, terms, or privileges of
employment to render him aggrieved under EEO regulations. Moreover,
the Agency's final decision improperly addressed the merits of
Complainant's complaint without a proper investigation as required by
the regulations. We note in this regard that the Agency's contention
that it could not move Complainant into a position with promotion
potential because of the Indian Preference Act and that agreeing to
Complainant's counter offer would have been the equivalent of promoting
her goes to the merits of Complainant's complaint and is not relevant to
the procedural issue of whether she has stated a justiciable claim. See
Osborne v. Department of the Treasury, EEOC Request No. 05960111 (July 19,
1996); Lee v. United States Postal Service, EEOC Request No. 05930220
(August 12, 1993); Ferrazzoli v. United States Postal Service, EEOC
Request No. 05910642 (August 15, 1991).
Accordingly, the Commission REVERSES the agency's final decision
dismissing Complainant's complaint and REMANDS the complaint to the
Agency for further processing in accordance with this decision and the
Order below.
ORDER (E0610)
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 (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 (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 14, 2011
__________________
Date
1 The Commission accepts Complainant’s appeal as timely in this
matter in light of the fact that the Agency provided Complainant with an
incorrect mailing address for her appeal. Specifically, the Commission
notes that in its final decision, the Agency provided Complainant with
an outdated post office box, (PO Box 19848 not PO Box 77960) for the
Commission’s Office of Federal Operations. In that regard, the
Commission finds that Complainant’s appeal containing a postmark of
December 1, 2010, was timely filed.
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0120112735
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120112735