0120120004
06-22-2012
Kathy L. Peterson, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.
Kathy L. Peterson,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120120004
Agency No. 1E-802-0016-11
DECISION
Complainant filed an appeal with this Commission from the Agency's final decision (FAD) dated August 19, 2011, 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
At the time of events giving rise to this complaint, Complainant worked as a Mail Flow Controller at the Agency's Network Distribution Center (NDC) facility in Denver, Colorado. On July 29, 2011, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of religion (Christian) and reprisal for prior protected EEO activity under Title VII when:
1. On April 8, 2011, Complainant became aware that she was bypassed and denied the opportunity to bid the Tour 2 Mail Flow Controller (MFC) position from 4:00 am - 12:30 pm with the scheduled days off of Sunday/Monday, and instead the position was awarded to a junior MFC; and
2. On June 30, 2011, management failed to bargain in good faith when they stated at REDRESS mediation that they had no authority to resolve Complainant's complaint.
On August 19, 2011, the Agency issued a final agency decision (FAD) dismissing the complaint for failure to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1). The Agency dismissed the complaint on the grounds that Complainant was not subject to any adverse action, nor was she denied any entitlement in relation to a term, condition or privilege of employment. Specifically, the Agency cited the testimony of the Senior Manager of Distribution Operations (Sr. MDO) that there was no vacancy at the Tour 2 position with a 4:00 am start time. Further, Sr. MDO testified that he offered Complainant the vacant position on Tour 2, which started at 8:30 am, and Complainant declined. The Agency did not specifically address claim 2 in its analysis.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the Agency erred in dismissing her complaint in its August 19, 2011, FAD. Complainant alleges that the Tour 2 position with a 4:00 am start time was vacant, and that Agency management circumvented the practice of filling positions according to seniority by awarding that position to a junior MFC. In addition, Complainant alleges that Sr. MDO made conflicting statements during a June 30, 2011, REDRESS meeting regarding his authority to resolve Complainant's claims. The Agency did not provide any response.
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 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. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).
The only questions for an agency to consider in determining whether a complaint states a claim are: (1) whether the complainant is an aggrieved employee; and (2) whether the complainant raises employment discrimination on a basis covered by EEO statutes. If these questions are answered in the affirmative, an agency must accept the complaint for processing regardless of its judgment of the merits. See Odoski v. Dep't of Energy, EEOC Appeal No. 01901496 (April 16, 1990). To determine if a complainant's allegations are sufficient to state a claim, the trier of fact must consider all alleged harassing incidents and remarks in light most favorable to the complainant. Cobb v. Dep't of the Treasury, EEOC Request No. 05970077 (March 13, 1997).
Claim 1
Upon review of the record, we find that claim 1 properly states a claim of discrimination. Complainant asserted that she was subjected to an adverse employment action with respect to the terms and conditions of her employment when Agency management denied her the opportunity to work on Tour 2, with a starting time of 4:00 am and Sunday/Monday off. She alleges that management circumvented the past practice of offering a vacant position to the most senior employees already in the position. According to Complainant, management offered the Tour 2 position to a junior MFC, but did not offer the position to Complainant. To state a claim a Complainant must show an injury or harm to a term, condition, or privilege of employment for which there is a remedy. See Diaz, EEOC Request No. 05931049. "Terms, conditions, or privileges of employment" include, among other things, reasonable accommodation, assignments, and leave. Cobb, EEOC Request No. 05970077. Accordingly, assuming that Complainant's allegations are true, we find that Complainant is an aggrieved employee and raises employment discrimination on a basis covered by EEO statutes. We find that the Agency erred in dismissing claim 1 for failure to state a claim.
Claim 2
Upon review, we find that the claim 2 does not state a claim of unlawful discrimination. Complainant alleges that the EEO Mediator notified Agency management that she would not be able to attend the June 30, 2011, mediation on Complainant's complaint. According to Complainant, Agency management went ahead with the meeting as planned, and Sr. MDO assured Complainant that he had the authority to resolve her complaint. Sometime during the mediation, however, SR. MDO stated that he did not have the authority to resolve Complainant's complaint, and no settlement was reached.
Here, we find that Complainant is alleging that statements made during settlement negotiations are the grounds of a new complaint. We advise Complainant that settlement negotiations are to be treated as confidential and privileged in order to facilitate a candid interchange in order to settle disputes informally. Therefore, to allow a new complaint based on mediation discussions would defeat this purpose. See Gomez v. United States Postal Service, EEOC Appeal No. 0120080526 (Oct. 21, 2009) (finding Complainant's claim that he was tricked into participating in REDRESS and was displeased with the mediation outcome failed to state a claim of discrimination); Leonhardt v. Dep't of Army, EEOC Appeal No. 0120065185 (Dec. 7, 2007) (citing to Montague v. Dep't of the Army, EEOC Request No. 05920321 (May 7, 1992), in finding that statements made by agency officials and managers during mediation could not be grounds for a claim of discrimination).1 Accordingly, we dismiss claim 2 for failure to state a claim.
CONCLUSION
Accordingly, we AFFIRM in part the Agency's final decision dismissing claim 2. However, we REVERSE in part the final agency decision dismissing claim 1, and remand that matter 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 (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
__6/22/12________________
Date
1 Moreover, we note that Commission policy states that, "[n]othing said or done during attempts to resolve [a] complaint through ADR [Alternate Dispute Resolution] can be made the subject of an EEO complaint." EEOC Management Directive 110 for 29 C.F.R. Part 1614 (EEO-MD-110), 3-3 (November 9, 1999).
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0120120004
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120120004