01986717
03-28-2001
Juanita Wood, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Juanita Wood v. U.S. Postal Service
01986717
March 28, 2001
.
Juanita Wood,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01986717
Agency No. HO-0037-97
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
bases of sex (female), age (over 40), and reprisal (prior EEO activity)
in violation of Title VII of the Civil Rights Act of 1964 (Title
VII), as amended, 42 U.S.C. � 2000e et seq., the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. and
the Equal Pay Act of 1963, as amended, 29 U.S.C. � 206(d) et seq.
The issue on appeal is whether complainant has established that the
agency discriminated against her based on the above factors when it
(1) relocated her to an office approximately 110 square feet in size,
(2) assigned her to an office away from her work, and (3) paid a male
coworker a higher salary for performing the same duties as complainant.
For the reasons stated herein, the agency's FAD is REVERSED.
According to the record, in 1996, organizational changes occurred at
the agency which caused an increase in workload and the assignment of
additional staff to one of the agency's Dallas, Texas facilities. As a
result, the offices of complainant and a male coworker (comparator), both
of whom were Real Estate Specialists in Asset Management, were relocated.
Complainant was assigned an office approximately 163 square feet,
the comparator was assigned an office approximately 171 square feet,
and the two together were assigned additional office space, which was
approximately 172 square feet and adjacent to their individual offices,
to place their files. Believing she was a victim of discrimination,
complainant sought EEO counseling and, subsequently, filed an EEO
complaint. In it, she alleged that the agency discriminated against
her based on sex, age, and reprisal when it took the actions mentioned
above in issues (1), (2), and (3).
The agency issued a FAD finding that issue (1) did not render complainant
aggrieved, thus, her complaint was dismissed for failure to state a
claim.<1> Complainant appealed the FAD to the Commission, which rendered
a decision reversing the FAD for improperly dismissing complainant's
complaint. In addition, the Commission remanded the complaint to
the agency for processing in accordance with 29 C.F.R. � 1614.108.
As a result, the agency conducted and completed an investigation of
complainant's complaint but, because it believed that complainant failed
to cooperate with its investigation, it rendered a second FAD without
notifying complainant of her right to choose either a hearing before
an EEOC administrative judge or an immediate FAD without a hearing.
This appeal followed, in which complainant requested a hearing.
The Commission finds that, pursuant to 29 C.F.R. � 1614.108(f), the
agency should have provided complainant with a copy of the completed
investigative file and a notice of her right to an EEO administrative
hearing or an immediate FAD without a hearing. Specifically, we find that
pursuant to 29 C.F.R. � 1614.107(a)(7), the agency improperly adjudicated
the complaint when it issued an immediate FAD for complainant's failure
to pursue after it gave her only seven days to respond to its request for
information and it failed to notify her of the possibility of complaint
dismissal for her failure to respond to its information request. The FAD
is REVERSED.
ORDER
The complaint is remanded to the agency to process complainant's request
for a hearing in an expeditious manner. The agency is directed to
submit a copy of the complaint file to the appropriate EEOC Hearings Unit
within fifteen (15) calendar days of the date this decision becomes final.
The agency shall provide written notification to the Compliance Officer at
the address set forth below that the complaint file has been transmitted
to the Hearings Unit. Thereafter, an Administrative Judge shall issue a
decision on the complaint in accordance with 29 C.F.R. � 1614.109 and
the agency shall issue a final action in accordance with 29 C.F.R. �
1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
(R0900)
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 (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
March 28, 2001
__________________
Date
1Although issues (1), (2), and (3) are identified throughout the record,
the agency addressed issue (1) only in its FAD.