01a42446
06-10-2004
June A. Nickerson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
June A. Nickerson v. United States Postal Service
01A42446
June 10, 2004
.
June A. Nickerson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A42446
Agency No. 4C-440-0049-04
DECISION
On December 15, 2003, complainant filed a formal EEO complaint wherein
she claimed that she was discriminated against on the bases of her
disability and in reprisal for her previous EEO activity under the
Rehabilitation Act when:
On November 18, 2003, and on an ongoing basis, management directed the
removal of all of her work assignments.
On November 12, 2003, and on an ongoing basis, she was required to
recertify her Family and Medical Leave Act (FMLA) medical condition in
violation of the FMLA.
By agency decision dated February 13, 2004, the agency dismissed claims
(1) and (2) of the complaint pursuant to 29 C.F.R. �1614.107(a)(1), on
the grounds of failure to state a claim, and claim (2) also pursuant to 29
C.F.R. �1614.107(a)(1), on the grounds that it states the same claim that
is pending before or has been decided by the agency or the Commission.
The agency determined with regard to claim (1) that complainant provided
no explanation about how management has directed the removal of her work
assignments. As for claim (2), the agency determined that complainant did
not claim any personal loss related to a term, condition, or privilege
of her employment. The agency also determined that the same matter was
raised in a prior complaint filed by complainant. The agency stated
that the prior complaint was investigated and a final action was issued
with a finding of no discrimination. Thereafter, complainant filed the
instant appeal.
As for the agency's dismissal of claim (1) on the grounds of failure to
state a claim, we find that complainant has stated a claim. According
to the EEO Counselor's report, complainant claims that her supervisor
has removed her work assignments and will not allow her to perform
duties with any responsibilities. Complainant's claim that her work
assignments have been removed concerns a term, condition, or privilege
of her employment. Accordingly, the agency's decision that claim (1)
failed to state a claim was improper and is hereby REVERSED.
As for claim (2), we find that requiring complainant to recertify her
medical condition under the FMLA did not cause complainant to suffer
personal harm to a term, condition, or privilege of her employment.
Complainant does not argue that the November 12, 2003 requirement to
recertify her medical condition resulted in a denial of FMLA leave.
Thus, the Commission finds that claim (2) fails to state a claim.<1>
The agency's dismissal of claim (1) is REVERSED and we REMAND claim
(1) for further processing in accordance with this decision and the
Order herein. The agency's dismissal of claim (2) is AFFIRMED.
ORDER (E0900)
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 claim 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
June 10, 2004
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1In light of our affirmance of the agency's dismissal of claim (2)
on the grounds of failure to state a claim, we need not address the
agency's alternative grounds for dismissal.