01A22437_r
06-27-2002
Patricia A. Gruver, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Patricia A. Gruver v. United States Postal Service
01A22437
June 27, 2002
.
Patricia A. Gruver,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A22437
Agency No. 1-H-324-0041-00
Hearing No. 150-A2-8088X
DECISION
Complainant filed a timely appeal from a final agency action dated
February 20, 2002, dismissing complainant's complaint for failure to
state a claim.
Complainant filed a formal complaint alleging that she had been subjected
to discrimination in reprisal for prior participation in the EEO process
when: on April 12, 2000, she received an attachment to an accident report
in which the agency described her as an unsafe worker and inferred that
she was not telling the truth about the circumstances of her accident.
The agency previously dismissed complainant's complaint for failure to
state a claim in an agency decision dated October 11, 2000. Complainant
appealed the agency's dismissal to the Commission and we reversed the
agency's dismissal in Gruver v. USPS, EEOC Appeal No. 01A11059 (February
23, 2001), finding that complainant was aggrieved with regard to a
condition or privilge of her employment. The Commission noted that as
relief, complainant requested expungement of the attachment and found
that the agency did not produce any evidence in the record that the
alleged discriminatory attachment was not included in complainant's
official personnel file and/or any related file within the agency.
The complaint was remanded for further processing in accordance with 29
C.F.R. � 1614.108.
The record reveals that the agency continued processing complainant's
complaint and complainant ultimately requested a hearing before an EEOC
Administrative Judge (AJ). In a decision dated January 31, 2002, the
AJ dismissed complainant's complaint for failure to state a claim. The AJ
stated that complainant can not establish that she suffered an adverse
action or harm as a result of the attachment nor the discussion which
subsequently occurred.
In a final agency action dated February 20, 2002, the agency adopted
the AJ's decision to dismiss complainant's complaint for failure to
state a claim.
Upon review, the Commission finds that complainant's appeal of the
agency's dismissal of his EEO complaint has already been decided by
the Commission in EEOC Appeal No. 01A11059, and that the present agency
decision is barred by the doctrine of res judicata. Thus, the agency's
final action is REVERSED and the complaint is REMANDED for further
processing in accordance with the Order below.
ORDER
The agency shall request that the Hearings Unit of the appropriate EEOC
District Office schedule a hearing. The agency is directed to submit
a copy of the complaint file to the EEOC District Office within 15
calendar days of the date this decision becomes final for a decision
from an Administrative Judge in accordance with 29 C.F.R. � 1614.109.
The agency shall provide written notification to the Compliance Officer at
the address set forth below that the complaint file has been transmitted
to the EEOC District Office. After receiving a decision from the EEOC
Administrative Judge, the agency shall issue a decision in accordance
with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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 (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (R0900)
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 within ninety (90) calendar days from the date
that you receive this decision. 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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 27, 2002
__________________
Date