01A12264_r
12-19-2002
Roberta L. Weikle, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Roberta L. Weikle v. United States Postal Service
01A12264
December 19, 2002
.
Roberta L. Weikle,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A12264
Agency No. 4D-250-0111-99
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision dated January 17, 2001, dismissing her 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.
In her formal complaint, complainant alleged that she was subjected to
discrimination and harassment from July 1996 through September 1998,
on the bases of sex and in reprisal for her husband's prior EEO activity.
In a final decision dated September 14, 1999, the agency dismissed the
complaint on the grounds that complainant's EEO Counselor contact was
untimely. The agency also dismissed reprisal as a basis. On appeal,
the Commission reversed the dismissal of the complaint and remanded
the complaint to the agency for further processing. Weikle v. USPS,
EEOC Appeal No. 01A00398 (April 3, 2000).
In a final decision that is the subject matter of the instant appeal,
the agency redefined complainant's complaint as being comprised of four
claims that were identified in the following fashion:
From June 1996 until September 4, 1998, complainant was subjected to
continuous offensive and inappropriate comments and actions by the
Postmaster;
On July 28, 1998, the Postmaster made a statement to complainant's
husband about her having sex with the former Postmaster;
On August 7, 1998, the Postmaster reprimanded her because of a complaint
made to the Contracting Officer in Arlington, Virginia; and
On September 4, 1998, the agency terminated the contract complainant's
husband/employer had with the agency.
The agency dismissed all four claims. The agency dismissed claim 1 on
the grounds of untimely EEO Counselor contact. The agency dismissed
claims 2 - 4 for failure to state a claim. The agency noted that
complainant resigned from the agency on September 12, 1997, and that
she subsequently worked as a contract employee with the agency pursuant
to a contract between the agency and complainant's husband. The agency
concluded that because complainant was not an agency employee when the
matters in claims 2 - 4 occurred, complainant is not aggrieved under
EEO Regulations.
The record reveals that complainant resigned from the agency on September
12, 1997. The record further reveals that complainant's husband
contracted with the agency as a Highway Contract Driver. Complainant's
husband employed her after her resignation from the agency, to help
fulfill his contract.
Claim 1
We determine that the agency improperly dismissed claim 1 on the grounds
of untimely EEO Counselor contact. We note that in our decision dated
April 3, 2000 , cited above, we determined that complainant initiated
timely EEO Counselor contact on June 18, 1999, regarding the matter
identified in claim 1 because complainant was initially given incorrect
information and had contacted an EEO Counselor after she received correct
information. We therefore will not revisit our determination regarding
this matter. The agency's dismissal of claim 1 is REVERSED.
Claims 2 - 4
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 Commission finds that the agency improperly dismissed claims 2 and 3.
The Commission notes that in claim 1, complainant alleges that she
suffered ongoing harassment from the Postmaster that began when she
was an agency employee. In claims 2 and 3, complainant contends that
the harassment continued while she was a contract employee with the
agency, after her separation from agency employment in September 1997.
The Commission has previously held that former employees have standing
to file EEO complaints. See Sternberg v. Department of Defense, EEOC
Request No. 05980976 (January 9, 1990). We have further held that former
employees frequently have standing to challenge agency actions that
presently affect them and for which remedial action would be available if
they prevailed on their complaints. See Laborde v. USPS, EEOC Request
No. 05910521 (July 25, 1991). The Commission determines that claims
2 and 3 have a nexus to complainant's claim that she was subjected to
ongoing harassment while an agency employee, despite her present status
as a former employee. Consequently, the agency's dismissal of claims
2 and 3 is REVERSED.
Regarding claim 4, we note that the alleged matter only concerns actions
involving complainant's husband, which complainant does not have standing
to challenge. Therefore, we find that the agency properly dismissed
claim 4 for failure to state a claim.
Accordingly, the Commission AFFIRMS the agency's dismissal of claim 4.
The Commission REVERSES the agency's dismissals of claims 1, 2, and 3
and REMANDS these claims to the agency for further processing consistent
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 (T0900)
This decision affirms the agency's final decision/action 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 within ninety (90) calendar
days from the date that you receive this decision 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. 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 (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
December 19, 2002
__________________
Date