01975309
04-14-1999
Kathy M. Faith, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Kathy M. Faith v. United States Postal Service
01975309
April 14, 1999
Kathy M. Faith, )
Appellant, )
)
v. ) Appeal No. 01975309
) Agency No. 1K-221-0035-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
___________________________________)
DECISION
Appellant filed the instant appeal from the agency's decision dated June
2, 1997 dismissing a portion of appellant's complaint (allegations 1,
2, 5, and 6) for failing to state a claim.
Allegation 1
The Commission finds allegation 1 concerns the alleged improper processing
of a prior complaint(s). The Commission finds that allegation 1
was properly dismissed for failing to state a claim pursuant to 29
C.F.R. �1614.107(a). The Commission finds that appellant should have
raised the concerns raised in allegation 1 during the processing of the
relevant prior complaints.
Allegation 2
In allegation 2 appellant alleged that the agency violated the collective
bargaining agreement by giving appellant a "PDI" (Pre-Disciplinary
Interview) prior to giving appellant an official discussion. The
Commission finds that allegation 2 was properly dismissed for failing
to state a claim pursuant to �1614.107(a). The Commission finds that
the EEO administrative process is not the proper forum to challenge the
violation of the collective bargaining agreement.
Allegation 5
In allegation 5 appellant alleged that the agency gave appellant a "PDI"
for disobeying a direct order to provide medical documentation. Appellant
stated that this action constituted harassment. The Commission finds
that this PDI did not render appellant aggrieved and is not sufficient,
even when combined with the accepted allegations (Letter of Warning and
changing of pay location), to state a claim of harassment. See Cobb
v. Department of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997).
Therefore, we find that allegation 5 was properly dismissed for failing
to state a claim pursuant to �1614.107(a).
Allegation 6
In allegation 6 appellant alleged that she was denied official time to
"turn in the letter at the EEO office." Appellant alleged that she was
informed by her supervisor that appellant would not be allowed to deliver
the letter "on the clock." Appellant alleged that she was ultimately
allowed to deliver the letter, but that she "was forced to use her
own break time for EEO processing that is normally done on the clock."
Therefore, we disagree with the agency's assertion that the EEO time
was granted. Although appellant states that she was allowed to go to the
EEO Office on her break time, she is claiming that she was not allowed
"official time."
The Commission finds that the outcome of this appeal is controlled by
the Commission's decision in Edwards v. United States Postal Serv., EEOC
Request No. 05960179 (Dec. 23, 1996). In EEOC Request No. 05960179 the
appellant had alleged that she was discriminated against on the basis
of retaliation when "she was not allowed official time to complete an
affidavit requested by the agency for another discrimination complaint
she had filed." Edwards, EEOC Request No. 05960179. The Commission noted
that 29 C.F.R. �1614.605(b) provides: "If the complainant is an employee
of the agency, he or she shall have a reasonable amount of official time,
if otherwise on duty, to prepare the complaint and to respond to agency
and EEOC requests for information." Id. The Commission held that it had
the authority to remedy a violation of �1614.605(b) without a finding of
discrimination. Id. (citing Edwards v. United States Postal Serv., EEOC
Request No. 05950708 (Oct. 31, 1996)). The Commission found that such
an allegation should not be processed in accordance with �1614.108. Id.
The Commission held that the "focus" should be on whether appellant was
denied official time and that the "agency's alleged motivation is not
relevant" to such an inquiry. Id.
Based on the Commission's decision in Edwards, EEOC Request No. 05960179,
we find that the agency improperly dismissed allegation 6. The Commission
must now determine whether appellant was improperly denied a reasonable
amount of official time to prepare her complaint.<1> The Commission,
however, can not determine if appellant was actually denied official time
because the instant complaint is vague as to what particular EEO complaint
preparations she was denied official time. Furthermore, there is no
affidavit in the record from appellant's supervisor who allegedly denied
the official time. Therefore, we shall remand the matter so that the
agency can contact appellant to clarify allegation 6. After clarifying
allegation 6, the agency shall investigate appellant's allegation and
issue a determination as to whether the agency provided appellant with
a reasonable amount of official time to prepare the relevant complaint.
The agency's decision dismissing allegations 1, 2, and 5 is AFFIRMED.
The agency's decision dismissing allegation 6 is REVERSED and we REMAND
allegation 6 to the agency for further processing in accordance with
this decision and applicable regulations.
ORDER
The agency shall:
1. Contact appellant to clarify what particular EEO complaint preparation
is at issue in allegation 6.
2. The agency shall investigate the issue of whether appellant was denied
a reasonable amount of official time to prepare the relevant complaint.
The agency shall include in the record documentation showing how much
of the requested time appellant was granted to prepare the relevant
complaint.
3. Allow appellant to place into the record any evidence supporting her
claim that she was denied a reasonable amount of official time.
Within 90 days of the date this decision becomes final the agency shall
issue a decision as to whether appellant was denied a reasonable amount
of official time to prepare the relevant complaint. The agency's decision
shall provide appeal rights to this Commission. If the agency determines
that appellant was denied a reasonable amount of official time, then it
shall reimburse appellant for any time she spent preparing her complaint
that was not designated official time. A copy of the agency's decision
must be submitted to the Compliance Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision 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 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.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
April 14, 1999
DATE Ronnie Blumenthal, Director
1It is not clear if appellant wanted official time in connection with
an EEO complaint or breach of settlement allegation.