01970127
04-13-1999
Ladie R. Brown, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Ladie R. Brown v. United States Postal Service
01970127
April 13, 1999
Ladie R. Brown, )
Appellant, )
) Appeal No. 01970127
v. ) Agency No. 1C-441-1093-96
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
On October 3, 1996, appellant filed a timely appeal of a September 12,
1996 final agency decision dismissing her complaint for failure to state
a claim.
In its final decision, the agency identified the allegation of appellant's
July 10, 1996 complaint as whether appellant was discriminated against
on the bases of race (Black), age (May 21, 1938) and in retaliation
for prior EEO activity "when beginning March 10 through March 29, 1996,
employees were detailed into In-Plant Support (where she was assigned)
because they want them." In dismissing the allegation, the agency stated
that appellant was not aggrieved because she failed to show how she was
harmed by the agency's alleged action.
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may
dismiss a complaint or a portion of a complaint which fails to state a
claim pursuant to 29 C.F.R. �1614.103 or �1614.106(a). An agency shall
accept a complaint from any aggrieved employee who believes that he
or she has been discriminated against by that agency because of race,
color, religion, sex, national origin, age or a disabling condition.
See 29 C.F.R. �1614.103; �1614.106(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. Department of the
Air Force, EEOC Request No. 05931049 (April 21, 1994).
In her March 15, 1996 Information for Precomplaint Counseling, appellant
alleged that from March 10 to March 29, 1996, the following occurred:
"Ongoing situation. Employees are detailed into In-Plant (where
I'm assigned) because they want them: [Person A], [Person B] etc.,
for conduct unbecoming postal employee: [Person C] and [Person D].<1>
In her complaint, appellant alleged as follows: "Not being train (sic)
in these areas, stated in summery (sic), will cause me to not be able
to do a good job as a QIS and stop chances of upward mobility. We have
people detail (sic) in QI office as QI Mgr (no such position) but getting
higher level. I asked to be trained in Transportation-denied."
On appeal, appellant asserts, through counsel, that she was aggrieved
because the agency has denied her training since she returned to work in
1995 and this denial of training prevented her from moving to positions
more favorable than the position to which she was assigned. Appellant,
a Quality Improvement Specialist, also asserts that she was improperly
denied the position of Manager of Quality Improvement. She contends that
another person has occupied the management position since March 21, 1996,
although such a position was not reflected on any official organizational
chart.
As an initial matter, we find that appellant's complaint requires
clarification. The Commission has remanded complaints where the complaint
was not adequately defined. See, e.g., Donnelly v. Department of
Energy, EEOC Request No. 05960623 (April 16,1998); Smith v. U. S. Postal
Service., EEOC Request No. 05921017 (April 15, 1993). While we find that
appellant's complaint is in need of further clarification, it is clear
that appellant raised the issue of denial of training. The Commission has
held that failure to address an allegation in a complaint is tantamount
to dismissal of that allegation without support. See Kapp v. Department
of the Navy, EEOC Request No. 05940662 (January 23, 1995). Even if the
agency believes that an allegation in appellant's complaint should be
dismissed, it may not ignore or fail to address the allegation as part
of the complaint. See Egington v. U.S. Postal Service, EEOC Appeal
No. 01961079 (December 23, 1996). The appropriate procedure is for the
agency to identify all of the allegations raised and then issue a notice
of acceptance indicating the allegations that will be investigated and/or
a final decision dismissing allegations pursuant to 29 C.F.R. �1614.107.
Id.
Consistent with our discussion herein, the agency's final decision is
VACATED and the complaint is REMANDED for further processing in accordance
with applicable regulations and the Order below.
ORDER
The agency is ORDERED to provide appellant the opportunity to clarify the
allegations raised in her complaint of July 10, 1996. Within fifteen
(15) calendar days of the date this decision becomes final, the agency
shall issue to appellant its request for written clarification and
shall provide appellant fifteen (15) calendar days to respond to its
request. Appellant should be instructed to identify with specificity
the allegations of her July 10, 1996 complaint and the dates of the
alleged discriminatory actions. Thereafter, the agency shall decide
whether to process or accept the allegations, and issue a notice of
processing and/or a new final agency decision with respect to all of the
allegations. 29 C.F.R. �1614.106 et seq. All of the foregoing actions,
including the issuance of the notice of processing and/or final decision,
must be completed within forty-five (45) calendar days of the date this
decision becomes final.
A copy of the letter requesting clarification, appellant's response, the
notice of processing and/or new final agency decision must be submitted
to the Compliance Officer, as referenced below.
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. �1614.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. 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 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 (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 13, 1999
DATE Ronnie Blumenthal, Director
1In identifying the allegation in the Counselor's Report, the EEO
Counselor left the allegation as identified by appellant basically
unchanged and did not provide any clarification. EEO Management Directive
110, Chap. 2, III (October 22, 1992) provides that at the counseling
stage, the EEO Counselor must be certain that the complainant's issues
are clearly defined.