0120102096
08-12-2010
Kathleen M. Webb, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Kathleen M. Webb,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120102096
Agency No. 1E671000310
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated March 16, 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.
BACKGROUND
In a formal complaint dated March 3, 2010, Complainant, a Supervisor of Distribution Operations at the Agency's Processing and Distribution Center in Wichita, Kansas, claimed that the Agency discriminated against her on the bases of race (white) and sex (female) when on November 18, 2009, she was given the opportunity to sign up for leave, but found out a co-worker had already signed up.
On March 16, 2010, the Agency issued a final decision. Therein, the Agency dismissed the instant formal complaint for failure to state a claim. Specifically, the Agency stated that Complainant did not aver any loss of pay or other entitlement related to a term, condition or privilege of employment. The Agency also stated that there was no evidence that Complainant was subjected to any adverse action or that Complainant was denied any entitlement in relation to a term, condition or privilege of employment as a result of the incident.
On appeal, Complainant asserts that the EEO investigator misstated her claim. Specifically, Complainant asserts that a black female employee was given higher leave sonority, which impacted her annual leave sign up and other opportunities. As a result, Complainant contends that she could not take leave on the dates that she wanted. Complainant asserts that she was aggrieved because she lost her choice of vacation time and did not receive higher level pay.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R � 1614.107(a) provides that an Agency shall dismiss a complaint or a portion of a complaint that fails to state a claim under � 1614.103(a). An Agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he has been discriminated against by that Agency because of race, color, religion, sex, national origin, age or disabling condition. An employee or applicant for employment is deemed aggrieved where the employee or applicant for employment "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).
The only proper questions in determining whether a claim is within the purview of the EEO process are: (1) whether the Complainant is an aggrieved employee and (2) whether he or she has alleged employment discrimination covered by the EEO statutes. An employee is "aggrieved" if he or she has suffered a direct and personal deprivation at the hands of the employer. See Hobson v. Department of the Navy, EEOC Request No. 05891133 (March 2, 1990). Here, Complainant contends that she was denied the opportunity for leave and higher pay because of her race and sex. The Commission therefore finds that that Complainant's claim is sufficient to render her an aggrieved employee.
Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED.
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.
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
______8/12/10____________
Date
2
0120102096
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102096