0520100590
11-19-2010
Linda S. Scott, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Linda S. Scott,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Request No. 0520100590
Appeal No. 0120101539
Agency No. 4H320012609
DENIAL
Complainant timely requested reconsideration of the decision in Linda
S. Scott v. U.S. Postal Service, EEOC Appeal No. 0120101539 (August
13, 2010). EEOC Regulations provide that the Commission may, in its
discretion, grant a request to reconsider any previous Commission decision
where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(b).
In the Commission’s previous decision, the Commission affirmed the
Agency’s final decision dismissing the formal complaint. Complainant
alleged that the Agency discriminated against her and subjected her
to a discriminatory hostile work environment in reprisal for her prior
protected EEO activity when:
1. While recovering from cancer surgery and treatment (April 2007 -
July 2008) she was told to sign a paper that would allow management to
fire her;
2. Management attempted to take away Complainant's seniority;
3. Documentation was removed from Complainant's eOPF (electronic Official
Postal File);
4. Complainant lost her bid job after almost 20 years (2008);
5. Complainant was not provided training on her new bid job;
6. In August 2009, Person X told a third party that Complainant could
be fired for not learning a scheme; the week before Christmas a job bid
posting regarding Complainant was still posted after approximately two
months; and,
7. On December 28, 2009, Complainant was told not to turn off her
computer.
The Agency dismissed claims (1) - (4) pursuant to pursuant to 29 C.F.R. §
1614.107(a)(2), for untimely EEO Counselor contact. The Agency also
dismissed issues (I) - (4) pursuant to 29 C.F.R. § 1614.107(a)(1),
for raising the same claim that Complainant previously raised in Agency
Case No. 4H-320-0065-09. Additionally, the Agency dismissed issues (5),
(6), and (7) for failure to state a claim. On appeal, Complainant alleged
that she raised a number of allegations not discussed in the Agency’s
final decision. The Commission found that Complainant had additionally
alleged that:
8. On April 27, 2009, Complainant requested copies of the documents in
her OPF and among the documents she found was the missing document from
her eOPF file;
9. Within two weeks after finding the missing Form 50 in the Postmaster's
Office, a fake document appeared in Complainant's eOPF;
10. The job Complainant held for nearly 20 years was reposted and declared
vacated on the bid;
11. Complainant requests the Agency investigate who tampered with
her eOPF;
12. Shortly after taking over at Crystal River, the Postmaster said he
had been “warned about a few employees by another postmaster;”
13. The Postmaster continually demanded more information about
Complainant's treatment for cancer and violated the HIPPA;
14. On October 4, 2006, as Complainant was closing her window for a
lunch break, the Postmaster put his mouth close to her left ear and
snarled “Never say lunch.”
Initially, the Commission found that claims (8), (9), and (11) were
related to and encompassed in issue (3) as defined in the Agency's
final decision. Additionally, the Commission found that issue (10) is
the same as issue (4) since both concern the loss of Complainant’s
bid job. Finally, the Commission found that claims (12), (13), and
(14), as defined above, were raised in Complainant's complaint and not
addressed in the Agency's final decision. Thus, the Commission addressed
those additional issues in the decision.
In the decision, the Commission found that claim (1) failed to state a
claim as Complainant failed to show a harm or loss to a term, condition,
or privilege of employment for which there is a remedy. As to claims
(2) and (3), the Commission determined that these claims were raised in a
prior case and then abandoned and, consequently, Complainant was precluded
pursuant to 29 C.F.R. § 1614.107(a)(1) from raising the same claims again
in the present complaint. Next, the Commission determined that claims
(8), (9), and (11) were properly dismissed as they were encompassed
in claim (3). Further, the Commission found that claims (4) and (10)
were properly dismissed for stating the same claim previously raised by
Complainant in Agency Case No. 4H-320-0065-09. Next, the Commission
found that claim (13) was properly dismissed for failure to state a
claim since it raises a matter outside of the Commission’s jurisdiction.
As to claims (5), (6), (7), (10), (12), and (14), the Commission found
that the issues identified were not sufficiently severe or pervasive
to constitute harassment. With regard to issues (6), (7), (10), (12),
and (14), the Commission determined that Complainant failed to show
that she suffered a harm or loss to a term, condition, or privilege of
employment for which there is a remedy. Finally, as to claim (5), the
Commission found that the Agency improperly dismissed the claim as moot
since Complainant alleged compensatory damages as a remedy. Accordingly,
the Commission affirmed the dismissal of claims (1) – (4) and (6) –
(14). However, the Commission reversed the Agency’s dismissal of claim
(5) and remanded the claim to the Agency for further processing.
In her request for reconsideration, Complainant alleges that the
Commission’s decision contains clearly erroneous interpretations
of material facts. Specifically, Complainant asserts that she
did not previously allege claims (2) and (3) in a prior complaint.
Further, Complainant alleges that the Commission’s decision will
have a substantial impact on the Agency’s policies, practices, or
operations as the removal of a document from her eOPF established her
correct seniority date. Additionally, Complainant maintains that no
other employee has had an improperly kept personnel file and that the
Postmaster’s “secret file” on her has now either been destroyed or
removed by upper management. Finally, Complainant contends that when she
received a copy of the record of investigation, it was missing documents
and that such withholding constitutes serious wrongdoing. Accordingly,
Complainant requests that the Commission reconsider its decision.
The Commission reminds Complainant that a “request for reconsideration
is not a second appeal to the Commission.” Equal Employment
Opportunity Commission Management Directive for 29 C.F.R. Part 1614,
at 9-17 (Nov. 9, 1999); See Lopez v. Dep’t of the Air Force, EEOC
Request No. 05890749 (Sept. 28, 1989); Regensberg v. U.S. Postal
Serv., EEOC Request No. 05900850 (Sept. 7, 1990). Complainant has not
provided evidence that our previous decision was clearly erroneous,
nor has she shown our previous decision would have a substantial impact
on the Agency's policies. After reconsidering the previous decision
and the entire record, the Commission finds that the request fails to
meet the criteria of 29 C.F.R. § 1614.405(b), and it is the decision
of the Commission to DENY the request. The decision in EEOC Appeal
No. 0120101539 remains the Commission's decision. There is no further
right of administrative appeal on the decision of the Commission on
this request. The Agency shall comply with the Order as set forth 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.
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission’s decision. 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. 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.
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
November 19, 2010
Date
2
0520100539
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520100590