Kathy M. Faith, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 14, 1999
01975309 (E.E.O.C. Apr. 14, 1999)

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.