01A44924_r
11-29-2004
Rachelle E. Johnson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Rachelle E. Johnson v. United States Postal Service
01A44924
November 29, 2004
.
Rachelle E. Johnson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A44924
Agency No. 4-H-390-0062-04
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision, dated June 18, 2004 dismissing her formal complaint of
unlawful employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
The Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.
Complainant contacted the EEO office claiming that she suffered
discrimination when she was placed on the machine outside her bid tour.
Complainant also claimed that her supervisor put his finger in her face
and said �you need to stop being stupid.� Informal efforts to resolve
complainant's concerns were unsuccessful.
On May 13, 2004, complainant filed the instant formal complaint, claiming
that she was the victim of unlawful employment discrimination on the bases
of race and in reprisal for prior protected activity. Complainant raised
one claim, that she identified in the following fashion:
on March 30, 2004, she was placed on the machine outside her bid tour.
As a remedy, complainant requested that harassment cease.
The agency issued a final decision on June 18, 2004, dismissing the
complaint for failure to state a claim. The agency found that by being
instructed to work the machine after her bid tour, complainant failed
to state a claim of harassment. In a footnote, the agency stated that
although complainant raised other issues during EEO counseling, she did
not raise these additional issues in her formal complaint. The agency
considered those matters to be abandoned.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,
.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).
The only proper questions in determining whether a claim is within the
purview of the EEO process are (1) whether the complainant is an aggrieved
employee and (2) whether she has alleged employment discrimination covered
by the EEO status. An employee is �aggrieved� if she has suffered direct
and personal deprivation at the hands of the employer. See Hobson
v. Department of the Navy, EEOC Request No. 05891133 (March 2, 1990).
In the instant case, complainant claims in her formal complaint that
on March 30, 2004, she was placed on the machine outside her bid tour.
The Commission finds that complainant's claim, regarding work outside her
bid tour, is sufficient to render her an aggrieved employee. Because
complainant has claimed that the adverse action was based on race and
reprisal, she has raised a claim within the purview of EEOC regulations.
Therefore, the agency's decision to dismiss the claim was improper.
Moreover, the Commission notes that by letter to the agency dated June 30,
2004, complainant stated that �I am not aware of any part of my complaint
I did not include at any time.� Further, complainant stated that �I
have gone through my complaint and see nothing omitted.� Therefore,
we find that the agency properly determined that the sole matter at
issue was the March 30, 2004 machine incident specifically identified
in the formal complaint.
Finally, we note that on appeal, complainant contends that she has been
subjected to �harsh working conditions� and describes several examples.
The Commission determines, however, that these matters are inappropriately
raised for the first time on appeal.
Accordingly, the agency's decision to dismiss complainant's complaint was
improper, and is REVERSED. The complaint is REMANDED to the agency for
further processing in accordance with this decision and the ORDER below.
ORDER (E0900)
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 (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
November 29, 2004
__________________
Date